Standing Committee E

[Frank Cook in the Chair]

Clause 73

Provision of food and drink on school premises etc

Mary Creagh: I beg to move amendment No. 428, in clause 73, page 57, line 4, at end insert—
‘(1A) Regulations under this section may prescribe requirements in relation to the food and drink provided at or by the governing body of an academy, city technology college or city college for the technology of the arts in like manner to the requirements imposed in relation to schools maintained by a local education authority.'.

Frank Cook: With this it will be convenient to discuss the following:
Amendment No. 263, in clause 73, page 57, line 12, at end insert—
‘(2A) Before making regulations under this section the Secretary of State must consult such persons as he considers appropriate.'.
Amendment No. 270, in clause 73, page 57, line 29, leave out ‘X' and insert ‘contractor'.
Amendment No. 271, in clause 73, page 57, line 31, leave out ‘X' and insert ‘the contractor'.
Amendment No. 272, in clause 73, page 57, line 33, leave out ‘X' and insert ‘the contractor'.
Amendment No. 269, in clause 73, page 57, line 45, leave out
‘different classes or descriptions of persons'
and insert
‘persons of different age groups'.
Amendment No. 429, in clause 73, page 58, line 2, leave out
‘maintained by a local education authority'.
Amendment No. 430, in clause 73, page 58, line 6, at end insert—
‘(11) References in this section to the provision of food or drink include references to provision by way of sale from a vending machine or similar appliance.'.
New clause 55—Consumption of food and drink contributing to good health of children—
‘(1) The governing body of a maintained school shall, in discharging their functions relating to the conduct of the school, take such steps as may be necessary to promote the consumption by children of food and drink which may be considered to contribute to their good health and well-being.
(2) At the end of subsection (4)(a) of section 482 of EA 1996 (Academies) leave out “and” and insert—
“(aa) conditions and requirements for the purpose of securing that measures are taken to promote the consumption by children registered at the school of food and drink which may be considered to contribute to their good health and well-being, and”.
(3) The obligations required to be performed under this section shall be performed having regard to guidance from time to time issued by the Food Standards Agency.'.

Mary Creagh: I am delighted that we have finally made it to part 6 of the Bill, which is about nutrition and health. Many hon. Members will be aware that last year, when I was drawn 10th in the private Member’s Bill ballot, I presented the Children’s Food Bill to this House. I pay tribute to the many Members present who supported me with that Bill, and to all those who are among the 281 MPs who signed the early-day motion that calls for better standards in school food. The main strands of what my Bill called for—issues on which teachers and parents across the country campaigned—are contained in this Bill.
It is fair to say that school meals currently have their highest profile since they were introduced at the start of 20th century. They are finally being recognised as a vital plank in ensuring child health and public health in later life. I am pleased that access to fresh tap water is being considered. In my school days, the only way one could get a drink of water was by sucking the taps in the school toilets—that was comprehensive education under the Tories in the ’80s. I am glad to see that the bad old days are now well and truly behind us. 
To put the amendments in context, it is important to talk about the obesity problem in the UK. Government figures from 2002 show that 30 per cent. of children aged two to 15 are either obese or overweight. If the rate of obesity increase continues at the current rate, more than half of children will be overweight or obese in the next 15 years—by 2020. The links between poor diet and chronic disease are well known. If we do not address this problem, mothers of my generation might, for the first time, have a longer life expectancy than their children.
I welcome the support that the Children’s Food Bill had from Unison, GMB, the National Union of Teachers, the Communication Workers Union, the Co-op, the British Medical Association and the British Heart Foundation. Parallel to the debate about children’s food has been a television process, with Jamie Oliver’s programme “Jamie’s School Dinners”, and a political process with the children’s manifesto, launch of the fresh fruit and veg for primary school children scheme, and the joint public service agreement on childhood obesity between the Department for Education and Skills and the Department of Health.
We are beginning to see the results of the £220 million investment to tackle obesity through better training for school cooks, better ingredients and longer hours for school meals staff, who are crucial not only to the cooking of school meals, but to cajoling children to eat them. I can see the difference in my own schools in Wakefield. When I launched the Children’s Food Bill last July, I visited two schools in my constituency. In one, all the children were eating white pasta and white sausage rolls, and in the second there were many smiley faces, but unfortunately they were on the shaped potatoes that are so abhorrent to parents, including me. Children like those kinds of food, so it is hard to wean them off that particular brand of unpleasant regurgitated mush.
With Wakefield council and its contracted in-house catering provider, Kingswood, we have seen the changes already, not just with ingredients, but with methods of encouraging children to make healthy choices, such as the use of stickers. I have an extraordinary memory for very good meals, and I have fond memories from my September visit to Lawefield primary school, in my constituency, of the turkey casserole with dumplings followed by pineapple pudding and low-sugar custard. That pretty much knocked me out for the rest of the day, but was, I assure hon. Members, the ultimate in comfort school food. Sandal Magna school, in my constituency, which I have mentioned before in Committee, has used the healthy school approach to transform the school by cutting out sweets and crisps, and switching to fruit and milk-based snacks.
In yesterday’s debate on clause 61, we spoke of the need for children to learn how to cook and grow their own food. We should not rely on TV celebrities to educate our children about what goes into turkey twizzlers. On that subject, I know that one French department has a food education programme, and that obesity there has risen by less that 1 per cent. over the past decade. However, in the rest of the country the increase is between 98 per cent. and 100 per cent. I understand that the Qualifications and Curriculum Authority is considering doing something similar at key stages 3 and 4.
I am slightly disappointed that the clause makes no mention of lunch boxes. I believe that all school food should be good food. I know that it is difficult to legislate for what people do in the privacy of their own homes, but I shall share with the Committee perhaps the worst anecdote that I heard in all my time working on the Children’s Food Bill. I heard several hair-raising stories, but the worst was that of a school dinner lady, who asked another member of her staff to look into a child’s lunch box. The child had been sent to school with a can in their lunch box, but it was a can of lager—this was a six-year-old child at a primary school. We need to give lunch boxes careful consideration. I know that some head teachers are taking steps to ban pre-packed and processed food. There is nothing wrong with a cheese sandwich and an apple, but not all children bring that sort of food to school.
Amendments Nos. 428 and 429 seek to probe questions on the nutritional standards of school meals available to pupils in academies and city technology colleges. I want to know to what extent the clauses relating to school food apply to children there. Ideally, we would like to see the requirements for food and drink on school premises covering all schools. Although they are categorised as independent schools, the academies and technology colleges are publicly funded and should be protected by the same legislation as other schools, particularly as they are often intended to replace schools in deprived areas.

Nick Gibb: I am interested in what the hon. Lady has to say. One thing that I am trying to grapple with is whether schools should permit children to leave the premises during the day, for instance at lunch time, when they can buy unhealthy food from the local shops. It is a difficult problem and I have been to some schools that do not allow children to leave the premises. What is the hon. Lady’s view?

Mary Creagh: My instinct is that it is appropriate for head teachers and governing bodies to make their own choice. At the school in Coventry where I grew up, only sixth-formers were allowed to leave the school premises. It is to do with keeping children together, combating antisocial behaviour, ensuring child safety on the roads and many other factors. Different schools will take a different approach. For instance, some children might leave for lunch and not come back. In other schools children will have lunch at home because it is close by or because they have specific cultural needs. Schools need to consider the local and cultural sensitivities, but my instinct as a parent would be for my child to be kept on the school premises—for all sorts of reasons, not least the burger van that the hon. Gentleman has at the back of his mind.
Poor nutrition, even in its milder form, can have detrimental effects on cognitive development, behaviour, concentration and school performance. Research shows that people of all ages in low-income households have lower nutrient but higher calorie intakes than those in richer houses. Including all schools in the requirements would ensure that the food and drink provided on school premises was not subject to undue influence from outside parties such as school sponsors. The amendments are designed to probe on that subject.
I turn briefly to what is happening now. Ofsted inspectors are considering school meals and, with the Food Standards Agency, visited primary and secondary schools in three local authority areas. They found that the standard of school meals had improved in a minority of schools, with primary schools making more rapid progress than secondary schools. That comes back to the point made by the hon. Gentleman; secondary school children have more mobility, more flexibility and, being teenagers, more resistance to doing the right thing, and they can use food as a means of rebelling.
Although primary school children are using the skills learned in the classroom to make informed choices about healthy meals, secondary school students do not always apply their knowledge when choosing meals. There is limited choice in schools. I have seen for myself that if children are given a choice—perhaps pasta and sausage rolls or salad and an apple—they always choose what they like most, because it is comforting. I wrestle with such issues myself as an adult; there is no reason to expect a five-year-old to do any better than a 38-year-old.
I should be interested to hear the Under-Secretary’s response to the evidence that students do not have enough time to eat or enjoy the social benefits of eating with others. There has been a move towards a plastic tray culture and away from proper cutlery and plates. Lunch may be the only time that some children sit down to eat with others in the day. There is evidence that the lunch break is too short in some secondary schools.
I turn to amendment No. 430, which seeks to clarify whether the provisions in part 6 apply to vending machines. I seek reassurances from the Under-Secretary. The amendment might provide schools with an opportunity to consider their contracts with vending machine companies. Healthy eating messages should be reinforced across the whole school—in the tuck shop, in the breakfast club, at the vending machines and through kitchen staff, so that the messages that children get about nutrition are consistent and mutually reinforced. That is important. However, I am glad that the provisions will not apply to the cakes brought into school for parents’ cake sales; for me, those are one of the highlights of school fêtes.
The amendment builds on the recommendation to remove fizzy drinks, crisps and chocolates from school vending machines which was published in February by the School Food Trust. The recommendation is in the middle of its 12-week consultation period, but I hope that at the end of May, when the time comes, the Under-Secretary will feel able to follow it.
Attempts to improve school meals are likely to be undermined if children have access to unhealthy foods at times other than lunch. Many of the foods and drinks commonly stocked in vending machines have been shown to have an impact on behaviour and concentration. There is evidence from secondary schools of children using their dinner money to buy Coke, crisps and chocolate bars at lunch time and nothing for lunch.
Fizzy drinks have a detrimental effect on concentration, behaviour and learning. A survey by the Food Commission revealed that a single drink of Ribena or Lucozade provides as much sugar as several packets of sweets. There is a danger with sports drinks; schoolchildren require energy, but most are not elite athletes training every day, and they do not take part in very high-energy sports every day.
I should be grateful to hear from the Under-Secretary about the lack of provision in the Bill to support schools tied into long-term contracts with vending machine suppliers providing unhealthy food and drink. All vending machines have been taken out of schools in France, and, I believe, the United States.
New clause 55 seeks to place a duty on governing bodies in all schools to promote healthy food to children. Schools are more likely to be successful in encouraging children to follow a healthy lifestyle if they adopt a whole-school approach to improving health and well-being; that has certainly been the case in Sandal Magna school in my constituency. School messages need to be reflected in all aspects of school life, including what is provided on the premises, in the science, food technology and history curriculum, in extra-curricular activities and in the social and physical environment. It is essential that discussions on promoting healthy lifestyle messages involve not only teachers and governors, but all members of the school community—support staff, caterers, parents and pupils. I should also like Ofsted to consider the quality of school meals when conducting inspections.
I commend the Food Standards Agency for its work on this issue. Its traffic light system for meals and food products has been taken up by Sainsbury’s, Asda and Waitrose, and I hope that Tesco will follow suit. The system helps parents, outside the school, to make the split-second supermarket choices that will help them feed their families healthily.
I should like to mention the report, “Tackling Child Obesity—First Steps”, which is a joint National Audit Office, Healthcare Commission and Audit Commission document that was published in February. It considered what was effective in tackling childhood obesity, and it found that school-based initiatives were the one area in which there was evidence of effectiveness. They talked about the effectiveness of nutrition education, physical activity promotion, a reduction in sedentary behaviour, behavioural therapy, teacher training, curriculum material and the modification of school meals and tuck shops.
They found that school-based intervention was more effective than either family-based intervention or the provision of exercise classes in schools. We must scotch the myth that this issue is simply about exercise. It is about considering the way in which the entire school works together and gets those messages out to children. I hope that the Under-Secretary will consider the amendment positive.
We must get the food companies out of our schools and classrooms. The provision before us is an important step, but it does not tackle the issue of sponsorship by multinational food companies of all sorts of things. In my constituency, there is a McDonald’s walking bus, which I am not happy about, and I do not see why we should give such food companies access to places where children are at their most eager to learn. Exercise books, leaflets and websites all have one simple aim: to place their products in front of children and disguise it as philanthropy.

Meg Hillier: I hear what my hon. Friend is saying, and I wonder whether she is aware of a parallel example in India. Alcohol advertising is banned, and companies promote water using the alcohol brand. They are very successful at promoting their brand while selling healthy products.

Mary Creagh: That sounds like an insidious promotion. If multinational companies are serious about tackling child health issues, they cannot do so just in this country. We must consider the international actions of large food companies. They may say one thing in this country, but if they do something else in other countries, particularly in developing countries, we must consider that carefully, too. There has been an explosion in obesity among certain sections of the Indian population.
Schools exist to develop children’s minds and introduce them to the world around them, but as Juvenal said in his satires, “Mens sana in corpore sano”, or “A healthy mind in a healthy body.” I was one of the five people who took Latin in Coventry in 1986. Catullus was my favourite, I must say. We know that, sadly, for many of our most disadvantaged children, the food that they eat in school is the only food that they may get all day.
The Bill will ensure that all schools, wherever they are and whatever their intake, provide healthy, nutritious meals for their children. I hope that the Bill will be remembered for improving the eating habits of a generation, and that we will be remembered for changing the life chances of this generation and those to come. Our children deserve nothing less.

John Hayes: I congratulate the hon. Lady on a comprehensive and powerful advocacy of her amendment. She and I went for a run earlier, and I do not think that it would do either of us any favours if we were to comment on our respective fitness, but it illustrated the importance of good health and good food.

Frank Cook: And amendments.

John Hayes: I am delighted therefore, to speak to the amendments that stand in my name and those of my hon. Friends. As the hon. Lady said, schools meals matter, because they may be the only meal that many children have during the day. They have the potential to be nutritious and to contribute to childhood health. It is not only schools meals that matter, but the type of school meals. Back on 27 February, the Daily Mirror reported that the Bill could mean free school meals for everyone. However, the Bill gives only those local education authorities and governing bodies that wish to do so the power to provide pupils with food and drink free of charge. Have the Government made any estimate of how many schools are likely to do so? The Daily Mirror headline was misleading, I presume.
Our amendment would require the Secretary of State to consult on the regulations and requirements for school food and drink. Where regulations specify nutritional standards, it is surely appropriate to take advice from appropriate bodies. The hon. Lady mentioned a number of those bodies. I endorse what she said. I, too, have met the Food Standards Agency to discuss this. It has a genuine concern about the quality of food consumed by many young people and the impact that has both on fitness and health more generally. We know of the accounts of increasing childhood diabetes, and the many other related conditions which are increasingly prevalent among younger people. It is crucial that the advice of bodies such as health organisations, nutritional organisations and others with useful information and insight to bring to this matter is taken into account. That is precisely what our amendment would deliver.
Amendments Nos. 270 to 272 are probing amendments to ascertain precisely what the Government mean by “X”. We suggest that “X” be replaced by “the contractor” or “contractor”, but what I am really interested in is the Government’s view on that; what do they perceive as the appropriate term to replace “X”?
Amendment No. 269 refers to the age of the pupil as the important issue in determining nutritional requirements, rather than the somewhat paternalistic phrase that is used:
“different classes or descriptions of person”.
There are shades there of the “Lady Chatterley’s Lover” trial—“different classes” of people. I have in mind people such as servants. I think “different age groups” is a much more appropriate term. The amendment would give us the opportunity to make the proper judgments that we need to make about the different dietary requirements of children of different ages as those change over time, as all parents know.

Sarah Teather: I wondered whether the reason behind the Bill’s description, clumsy at it is, was to include different religious groups, for example, who may have distinct dietary requirements. Perhaps the Under-Secretary will respond to that later. It occurs to me that the description in the amendment might be more prescriptive and therefore preclude such groups.

John Hayes: Yes, it may be appropriate on that basis to add “descriptions” or some other similar word, and we will hear what the Government have to say on that. However, it seems to me that “classes of person” is an inappropriate way of describing even the groups that the hon. Lady refers to. A phrase such as “different ages and groups” might be a more appropriate term, so I do not argue that our amendment is perfect, but I hope that it will at least tease out from the Government consideration of the way they describe those categories. I am mindful of the sensible remark the hon. Lady makes.
The case made for amendment No. 428 by the hon. Member for Wakefield (Mary Creagh) is a strong one. It is hard to understand why different requirements should pertain in relation to this matter in the case of the governing bodies of academies, city technology colleges, city colleges for the technology of the arts and other specialist schools. I do not understand why anyone would want to create difference between them, but, again, the Government might have a logical explanation for that. However, there is, at least at face value, some force to the hon. Lady’s argument that standards should be the same throughout.
To repeat what I said at the outset, this is an important part of the Bill. We are all conscious of the fact that this matter has been driven into the public domain by the work of Jamie Oliver. That is the second time he has been mentioned in this Committee. He must be desperately pleased; I bet he is at home reading Hansard by the day to discover how often he is mentioned in the Committee. The publicity that he has given this important matter is valuable. It has had the effect of elevating it in the considerations of all politicians, including those in the Government. So I am disturbed that he has recently said that he has gone through three Secretaries of State—perhaps as many as he has had hot dinners, one might say—without seeing much progress. That is a worrying report from him.

Angela Smith: Is it not true that many local authorities in the land have been advancing that agenda for some time? With Government co-operation, Hull city council has done a great job in introducing healthy school meals free of charge for all primary school children. Should not that action of a Labour council be applauded?

John Hayes: Yes, the hon. Lady is right. There are some local education authorities that run very good school meal services. The truth, however, as I think she would acknowledge, is that it is pretty patchy. Different regimes prevail in different parts of the country regarding what is provided, whether a hot meal is available, where it is provided from, and the other circumstances that might pertain. Nutritional standards also vary from one place to another.
I share the concern about vending machines that the hon. Member for Wakefield expressed when she was speaking on her amendments. I do not want to see any vending machines at all that sell crisps, chocolate or pop in schools. It is a monstrous idea that one should be promoting nutritious food, yet as children walk out of a dining hall they are confronted with the opportunity to purchase food that is fundamentally unhealthy. I understand that that is even the case in some primary schools; perhaps the Under-Secretary will confirm the position. The idea of nine, 10 or 11-year-olds being subjected to that is unacceptable, and I support the hon. Lady’s views.
As for McDonald’s hamburgers having a handle on it, I believe that they are the unacceptable face of capitalism, with all their brutal ubiquity, and I am in agreement with the hon. Lady on that as well. We need a cross-party consensus on delivering the best possible school meals for all our children—meals that encourage good health, good diet and the kind of fitness for which the hon. Lady and I, as we proved earlier, can only yearn.

Sarah Teather: This may be the only part of the Bill on which we can guarantee a complete cross-party consensus, and the Liberal Democrats thoroughly welcome these clauses. I congratulate the hon. Member for Wakefield, who covered most aspects that I wanted to address. I shall not repeat them, but, of the many excellent points that she made, I should like to highlight the need to take a holistic view. The point is not just one of diet and exercise. As the hon. Lady mentioned yesterday, it is also about making sure that young people learn the skill of cooking for themselves, learn the differences between kinds of foods, and are able to apply that knowledge at a later stage. They must also be able to exercise choice. If we enable people to move in and out of school at 16, we need to make sure that they are equipped with the skills and knowledge to make healthy decisions on their lifestyles.
I strongly endorse amendment No. 428. Academies are going to be placed in some of the most deprived areas of the country, so they are more likely to have a large number of young people taking free school meals, and it is particularly important that the regulations apply. My party has not received the draft regulations, whereas in previous sittings we have received copies—albeit barely in time to be able to read them. It is possible that they were simply not sent to our offices, but will the Under-Secretary confirm whether the regulations have yet been drafted or will appear later, and whether they will be made available before the Report stage?
On the amendments tabled by the Conservatives, will the Under-Secretary indicate whether the Government might encourage local authorities to work with local traders in particular, and might also encourage locally based partnerships between the local authority, schools and local organisations, rather than simply encouraging multinationals to come in?
I agree with the hon. Member for South Holland and The Deepings (Mr. Hayes) that the words of the Bill highlighted in amendment No. 269 are clumsy. It is not clear what they mean. It is vital that sensitivity and flexibility are allowed, particularly in multiracial areas, multi-ethnic areas and multi-religious areas. We must ensure that schools have enough money and flexibility to provide food that meets the dietary requirements of the various religions. However, it is not clear whether the amendment would make it any easier.

John Hayes: Before the hon. Lady rushes on from what she is saying about local provision, does she agree that Jamie Oliver has highlighted the importance of fresh food? Fresh locally produced food with a short food chain from the producer to the school would support local businesses and local primary producers. The Bill could give rise to an ideal partnership.

Sarah Teather: Absolutely. I strongly endorse what the hon. Gentleman says. Indeed, the Liberal Democrats, working with Labour, have pushed forward the “Hungry for Success” programme in Scotland. Jamie Oliver has highlighted it, and he has congratulated people on running such partnerships. It demonstrates what can be done with the right investment if one concentrates on nutritional standards in the curriculum and ensures that young people are taught about the various aspects of diet.
One difficulty with vending machines is the amount of money that schools are still making from them. The hon. Member for Wakefield highlighted the problems that schools sometimes have with getting out of long-term contracts. If we want schools to move away from providing the unhealthy options that are sold from vending machines, we should support them so that they can move to another contract, although that may be expensive.
Schools now focus more on being at the centre of the community and many are used by adult groups, adult education and the voluntary sector over the weekends and in the evenings. We need to be aware of that pressure on schools. However, I see no reason why school vending machines should not offer healthy options. It may not be practical to sell apples from vending machines, but all sorts of healthy bars and drinks can be provided that would be suitable for community use at the weekends and in the evenings, as well as for young people. I welcome the provisions.

Phil Hope: We have had a good debate on this important clause, which establishes the provision for new and tougher nutritional standards for food and drink served in maintained schools in England. As we heard, it will establish regulation-making powers to ensure that children have access throughout the day to food and drink of a high nutritional standard and will replace the existing standards for school lunches, which were introduced in 2001. The hon. Member for Brent, East (Sarah Teather) was right to say that there is all-party consensus in Committee on this important matter.
I thank my hon. Friend the Member for Wakefield for her ongoing interest and her commitment to improving children’s health. Her private Member’s Bill, the Children’s Food Bill, has driven forward the agenda, raised its profile and gained public support. I am glad that she is a member of the Committee, and I thank her for presenting her case so forcefully and eloquently. We have similar goals, although our methods of achieving them may differ in detail. I hope that my explanation of how we intend going about things will meet the many concerns and issues that she raised.
There is a wider public interest in what we are debating. It is not only Jamie Oliver—there we are; a third mention—who is taking an interest in the health of our schoolchildren, although his unique position helps him to inspire pupils to consider their diet and to make the right choices. I was pleased to be reminded by my hon. Friend the Member for Sheffield, Hillsborough (Ms Smith) that the matter has been of concern to local authorities, teachers and schools for many years. Patchy though it has been, we want to apply best practice throughout the country. I acknowledge the work of authorities such as Sheffield, which have led the way. Long before the current high-profile initiatives began, we were working with the Department of Health, the Food Standards Agency and healthy schools teams on a range of activities supporting healthier eating and drinking throughout the school day.
On amendment No. 263, it would serve no useful purpose to consult further on the proposed standards for school food and drink. There is no requirement in England to consult on the details of secondary legislation. We have already consulted widely on the detailed proposals for school lunch standards. We have sought the views of many different key stakeholders—the hon. Gentleman for South Holland and The Deepings identified many of them—on similar proposals for school food served at other times of the day. Proposals for lunch standards made by the school meals review panel were subject to a full, 12-week public consultation, with responses from local authorities, schools, health sector charities, the food industry, trade unions and caterers. The proposals are still available on our DFES website.

John Hayes: I am impressed by the list of people that the hon. Gentleman has consulted and I take his point. I wonder whether he has taken into account the important issue of fair trade in this respect. Has consultation included proper consideration of a fair trade agenda and also proper consideration of those who advocate British produce, where local supply can guarantee the kind of quality that we all spoke about?

Phil Hope: Clearly the priority is nutritional health and nutritional standards. I am sure that where fair trade products meet those nutritional standards, there is clearly value in adopting those products. I was reminded by my hon. Friend the Minister for Schools, who has recently moved from the Department of the Environment, Food and Rural Affairs, that DEFRA recently undertook a public procurement initiative.

Jim Knight: Public sector procurement.

Phil Hope: It is a public sector procurement initiative as part of the sustainable foods and farming strategy established by the Government. In my hon. Friend’s new post, he will almost have to talk to himself about how we might carry on promoting the use of local fresh produce and of local producers of food to be served in our schools, which is an important consideration.
In terms of consultation, we have held many detailed discussions with a variety of stakeholders on many of the concerns that they have raised. There has been plenty of opportunity for all interested parties to comment on those. As a result of those discussions, we are consulting on the new regulations, and when the consultation is complete, we will publish the draft standards and regulations.
A minor technical point is that the position is slightly different in Wales. The Welsh Assembly established a food in schools working group last year. The group has considered how to improve nutrition in schools, and later this year there will be a public consultation on its report. The Assembly Government will then take account of the report and consultation in making regulations. I am told that the Standing Orders of the National Assembly require Welsh Assembly Ministers to prepare regulatory appraisals of the cost and benefits of draft Assembly regulations. Where costs are likely to be significant, there must be consultation with business and other organisations with an interest in the draft instrument and appraisals. 
Amendment No. 269 deals with the scope of the clause and suggests that it should be narrowed. I hear the comments that hon. Members made about the wording. Let me be clear: it does allow for regulations to set different requirements in connection with food and drink provided by or to different classes or descriptions of person. This is not about social class in the way that the hon. Member for South Holland and Deepings suggested; it is just a generic term to imply that there are groupings. I am sorry if the wording jarred with him, but that is what it means in practice. It encompasses the different age groups suggested in his amendment, but gives wider flexibility.
The hon. Member for Brent, East made her point about sensitivity to different cultural norms very well. The clause gives wider flexibility for school standards to be relaxed, or indeed tightened, if the Secretary of State considers that necessary.

John Hayes: Will the Under-Secretary consider going away again and looking at a phrase like groups, ages and descriptions, which might give him the breadth that he needs but will not be misinterpreted by others?

Phil Hope: I am happy to take the hon. Gentleman’s concerns into account. We think that the measures we are talking about, in addition to those mentioned by the hon. Member for Brent, East, will result in us finding that children’s dietary research offers new insights into what might be best done in schools, and we therefore might want to revise our standards. We might discover that nutritional deficiencies are identified as having an impact on some medical symptoms.
Amendments Nos. 270, 271 and 272 suggest narrowing the scope of subsection (6) to cover only contractors. I understand that they are probing amendments to discover why we used the letter ‘X’. We want to ensure that all food and drink provided to children at school by any person, not just by those defined as contractors, must comply with the requirements and regulations. We want the messages that we give to children to be consistent, and we therefore believe that the same standards must apply equally to all food providers, whether they are the local authority, the governing body, a contractor or any other person. I hope that that explains why we have used that wording.
We will relax standards to exempt schools from the requirement to follow them when food and drink is provided for parties or celebrations to mark religious or cultural occasions, when parents bring in a birthday cake and so on. We want such exemptions because we want common sense on the matter.
On amendments Nos. 428 and 429, yes, the requirements of the clause extend only to local authority maintained schools and will therefore not automatically apply to academies. However, the point was made that academies serve disadvantaged areas, where a high proportion of pupils are entitled to free school meals, so the requirement to meet nutritional standards will be made through amendments to their funding arrangements. CTCs were also mentioned. Many CTCs have healthy eating rewards. Most are in the process of converting to academy status or have already done so, and will therefore be expected to comply through their funding agreements.
On amendment No. 430, it is not necessary to state explicitly that references to food and drink also include that sold in vending or similar machines. The title of the clause is “Provision of food and drink on school premises etc”, and it is intended to cover all food and drink provided on school premises, regardless of how it is provided. It therefore includes food and drink sold from vending machines and tuck shops, or by any other method. On the detailed point about contracts for vending machines—the hon. Member for Brent, East suggested that there are things that we need to consider—we are developing further information to assist with the variation of such costs. We will make that available to schools and local authorities to overcome the dilemmas that might exist.
I was asked how regulations will set out specific, detailed requirements on the provision of food and drink at lunch time and other times. The school meals review panel commented on the importance of ensuring a whole-school approach to healthy eating, which as my hon. Friend the Member for Wakefield said, is very important. Placing an additional duty on governors, as new clause 55 suggests, is not the best way forward. Under current legislation, whichever body holds the budget for school meals has a duty to ensure that nutritional standards are met. If that budget has been delegated to school level, the governors become responsible. We do not plan to change that arrangement.
The Food Standards Agency has published guidance on how the nutritional standards can practically be achieved and how to develop approaches to providing children with access to healthier food across the whole school day. Last year, the National Governors Council published “Food Policy in Schools”, a step-by-step guide to adopting a strategic approach. We have also published guidance that is not specifically school-related. It would not be sensible or realistic to expect schools to be accountable.
Hon. Members, including my hon. Friend, made the point about the time available at lunch time to eat a nutritious meal. The length of school lunch times will remain a decision to be taken at a local level by head teachers and school governors, but the School Food Trust will issue guidance giving examples of good practice to help implement new standards. It will address issues related to school lunch.
The hon. Member for Bognor Regis and Littlehampton (Mr. Gibb) made an intervention about pupils going out of school at lunch time. I wish to make clear the Government’s view and support that of my hon. Friend the Member for Wakefield. Wherever possible, we want schools to keep pupils on site during the lunch hour and provide them with supervision and a range of appropriate clubs, activities and sports. That approach will ensure that pupils are well nourished and will have a better school day. As it will minimise any friction with the community it will have wider benefits too. I know that that approach creates challenges for some schools, but it is one that we would support.
Finally, all maintained schools will be required to achieve healthy school status by 2009, including healthy eating, using a whole-school approach and involving the whole school community. There is a growing body of healthy school initiatives, enough of which are statutory to ensure that governors take their responsibility for healthy living in schools seriously. I hope that I have addressed all the issues raised by hon. Members and that they will not press their amendments.

John Hayes: The communal consumption of food is important in all cultures, including ours: it involves everything from the sacrament to every feast and festival. School meals are important in that respect. The Minister has been persuasive in his account of what the Government are doing, and we urge them to do ever more. I certainly urge them to take the comments of Conservative Members and of the hon. Members for Wakefield and for Brent, East into account. They demonstrate a collective view of the importance of this part of the Bill. I am reassured to a degree and I certainly will not press my amendments.

Mary Creagh: I am delighted that there is finally an outbreak of consensus in the Committee. I should like to bring to hon. Members’ attention some of the realities on the ground in Hull. We heard from the hon. Member for South Holland and The Deepings that he supports what is happening there, with 24,000 primary school pupils in the city getting free school meals. I wonder whether he is in agreement with the Conservative group leader, John Fareham, who told the Hull Daily Mail on 24 March that Tories oppose universal free school meals because
“it perpetuates a culture of state reliance.”
I wonder whether the hon. Member for Brent, East agrees with the Liberal Democrat leader, Carl Minns, who before the election said that they would be asking parents to pay—

Frank Cook: Order. Although the comments are colourful, interesting and entertaining, they are not strictly pertinent to the amendment before us. So let us please make progress.

Mary Creagh: I am grateful to you, Mr. Cook. I was responding to the debate in its broadest sense, but I will move on and address my comments to the Minister. I share his approach on amendment No. 263. I agree that the consultation on these matters has been exhaustive. The fact that hundreds of thousands of parents across the country have signed up to the feed me better campaign is a demonstration that this is one of the parts of Government policy that really has reached the parts that other parts do not reach, to paraphrase a well-known alcohol advert.
I am also relieved to hear that treats such as cakes, birthday food and celebration food will be exempt from the regulations. As I have said repeatedly, we have to have a sensible approach on this. I agree that this is the middle way. I was relieved to hear what myhon. Friend had to say about vending machines and tuck shops and I take on board his comments about governors. I am also relieved to hear that he will be advising schools on how to transfer to healthier school meals. One of the problems is that when there is a big bang, televisual approach, children stop taking the meals because, for example, they do not like carrots and leeks, and it is hard for the school to make its school meals financially viable. We need to think about how we make that transition.
I am also glad to hear that guidance will be issued on lunch times and making the lunch period last a full hour. I am grateful that there will be a range of clubs and activities, but I also recommend the boredom of the lunch hour. Children have far too little experience of the aching boredom of the school lunch hour, which helps them find their own creativity and internal resources. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 73 ordered to stand part of the Bill.

Clause 74

Power to charge for provision of meals etc

Question proposed, That the clause stand part of the Bill.

Roberta Blackman-Woods: Clause 74 is a gem of a clause, which has not received the full recognition that it deserves. Its importance lies in its removal of the duty on local authorities and governing bodies to charge for food and drink provided by them, replacing that with a power to charge instead. That is important because local authorities and governing bodies that want to do so are enabled to provide all or some of the meals that they provide free of charge. If supported locally, that could revolutionise school meals, probably more so than Jamie Oliver has done.
A number of us visited Sweden earlier in the year and saw some excellent examples of a free school meals service providing very good quality food. What was excellent about the scheme was that teachers sat down with the pupils at lunchtime and ate alongside them. I wish we could introduce that in this country. That takes up the point that my hon. Friend the Member for Wakefield made earlier about ensuring that children have a nutritional meal during the day.
Will the Minister confirm that his Department will support and encourage local partnerships around “Every Child Matters” or the extended schools agenda and probe their budgets, so that this provision can become a reality on the ground, with partnerships having the autonomy to provide school meals without having to obtain permission from the DFES?

Phil Hope: I am grateful to my hon. Friend for drawing attention to this important clause, the significance of which, as she says, could well have been overlooked. She need not have gone as far as Sweden to find examples of schools taking such steps forward. Hull city council used its powers under the power to innovate to introduce a pilot scheme to offer free lunches to all primary school children, which turned out to be very successful. On the basis of such initiatives we decided to bring forward the clause, which allows other local authorities to take such an approach.
I am struck by my hon. Friend’s suggestion that schools and local authorities might want to get together and collaborate. The Department will take a lot of interest in that suggestion. If we see such collaborations and proposals, we would want to give them our support and encouragement. I am delighted to say that the clause is important and I hope that the Committee will give it full support.

Question put and agreed to.

Clause 74 ordered to stand part of the Bill.

Clause 75

Responsibility of governing body for discipline

Nadine Dorries: I beg to move amendment No. 570, in page 58, line 40, at end insert
‘, with reasonable adjustments to the policies being made for any pupils regarding—
‘(a) any special educational needs he may have, or
(b) any disability he may have in accordance with the Disability Discrimination Act 1995.'.

Frank Cook: With this it will be convenient to discuss the following amendments: No. 571, in clause 79, page 62, line 17, at end insert
‘and
‘(e) that the local education authority is given at least 24 hours' notice in writing that the detention of a pupil subject to a statement of special educational needs is due to take place and such notice is appended to the pupil's Annual Review report.'.
No. 573, in clause 80, page 63, line 22, at end add—
‘(7) The powers conferred by subsection (1) are subject to reasonable adjustments in the case of the use of force on a pupil who may have special educational needs or a disability.'.
No. 574, in clause 84, page 64, line 36, at end insert—
‘(1C) For the purposes of subsection (1A) when determining whether the imposition is reasonable the local education authority or the governing body must take account of any special circumstances which are known to it (or of which it ought reasonably to have been aware), including in particular—
(a) any special educational needs the child may have, and
(b) any disability the child may have.'.

Nadine Dorries: Amendment No. 570 concerns the adjustments to be made for children with educational needs or disabled children.
Most people would accept that schools should be required to have positive behaviour management strategies to improve school discipline. However, as noted by the Government in their special educational needs policy document “Removing Barriers to Achievement”, too many vulnerable children with special educational needs and disabilities, including those unfortunate enough to benefit from a statement of special educational needs, are either permanently or temporarily excluded from school. In fact, they represent two thirds of the number of exclusions nationally, when they represent less than 20 per cent. of the school population.
For example, recent statistics from the Office for National Statistics and the Department of Health, published in August 2005, show that 27 per cent. of all children with the autistic spectrum disorder are excluded from school at any one time. If 27 per cent. of our generic school population were excluded there would be a public outcry. Yet a very vulnerable group of children with special needs face this prospect day in and day out.
In the need to improve discipline in schools, I am concerned that we may well be coming into conflict with the current policy of inclusion, which Lord Adonis advised the Education and Skills Committee was the will of Parliament. Will the Minister clarify what he believes Lord Adonis meant? I ask that because my experience as a constituency MP tells me that inclusion in a mainstream school is often against the express wish of the parents. I describe myself as a pro-inclusionist in that I believe that children who want to be and can be educated in a mainstream school should be, but it is strange to describe the policy of inclusion as the will of Parliament rather than as the will of the Government of the day, particularly when “Removing Barriers to Achievement” is a Government document that drives the policy of inclusion.
Leaving that aside, we need to consider seriously whether, as a direct consequence of the clause without the amendment, we may well increase the number of children with special educational needs and disabilities who, instead of being included, are excluded from school.

Frank Cook: Order. I must point out to the hon. Lady that the clause is about discipline rather than inclusion.

Nadine Dorries: I apologise, Mr. Cook. Thank you for your guidance.
We must ensure that any behaviour policies written by schools reflect the individual needs of the child and their ability to conform to our informed aspirations for socially acceptable behaviour. They may be unable to understand, share or relate to those aspirations. At our previous sitting, I mentioned a school in Southwark where 62.2 per cent. of the children have special needs. What kind of behaviour or discipline policy will a school have to address the needs of children who do not have special needs and of children who do?
It is worrying that Sir Alan Steer, whose inquiry into behaviour management for children informs the Bill, was not asked by the Government specifically to investigate children with special educational needs. In fact, he was specifically asked not to investigate children with special educational needs and the impact that their behaviour may have on the efficient education of their peers and school discipline.
With amendment No. 571, we ask for the local authority as well as the parents to be given 24 hours’ notice that the detention of a pupil subject to a statement of special educational needs is due to take place and for such notice to be appended to the pupil’s annual review report. It is important to note that many pupils subject to a statement of special educational needs require transportation to school and the local authority is responsible for making such arrangements. In fact, some children with special educational needs, particularly disabled children, have quite specific transport needs. Therefore it seems perfectly reasonable that, as well as parents, the local authority should be given appropriate notice so that it can make alternative arrangements to meet its responsibilities to transport the pupil to their home and to school after the detention period.
It is also important for such notifications to be appended to the pupil’s annual review report to reflect properly the fact that they have experienced a number of penalties as a consequence of their behaviour. Appended notifications could inform and prompt amendments to the statement of special educational needs that would accurately reflect those difficulties and the triggers for them—that is, what started the behavioural problem in the first place—and as such could well prevent further escalation of behavioural problems and future exclusions.
Amendment No. 573 relates to staff in the school having accredited training in the use of physical restraint of children and young people. I am concerned that if we reinforce the right or the power of the teaching profession to use force, people could develop an expectation that it is an acceptable practice physically to restrain or to use force on a pupil when the teaching staff have neither the skills nor the desire to do so. Moreover, the use of physical restraint or force on a pupil can lead to further violence, rather than preventing it, which is the desired effect.
I want to inform the Minister of a phone call that I received this morning about a six-year-old girl who was this morning excluded from school. It is a typical example of what happens to many special needs children when they are restrained. It is worth noting that staff in special schools are quite often trained in the restraint of disabled and special needs children. The little girl to whom I am referring is quite high on the autistic continuum and is in a mainstream school. She has a fear of water. I am sure that the Minister will hear more about the case. The girl needed to have her hands washed. Probably they were filthy and the teacher felt that it was important to wash them. Perhaps she was about to eat. I do not know the full details. The teacher held the child’s hands under the tap to wash them. The child did all that she had available to her to defend herself and bit the teacher. She was immediately excluded from school.
I have worked as a nurse and, when I was told that story on the telephone this morning, I thought of the many times that I had been bitten by children, especially when conducting lumbar puncture procedures or others that we knew would hurt a child, but which had to be carried out. I cannot imagine what would have happened if, after those procedures I had been bitten and had said, “Right, that child is excluded from the ward.” It is a strange way to behave towards children with special educational needs. Such a condition is an illness.
We rightly train police officers in the restraint of offenders, many of whom sadly are young, yet we want to emphasise the right to use force while not equipping our hard-pressed teaching professionals with basic skills to enable them appropriately and safely to restrain pupils and ensure that neither they nor staff members are caused undue injury. Moreover, it is much more likely that, by using reasonable restraint or force, appropriately trained teaching professionals are less likely to be subject to an accusation of having used unreasonable force of a criminal nature in the future.
A number of children with special educational needs and physical disabilities in our schools require highly specialist behaviour management techniques regarding restraint or force. As I said, all staff in special schools are trained in that way. Along with designated powers, the Government have ensured that the training of teaching staff in the use of force is the subject of legislation to keep both pupils and staff safe. The Minister may wish to consider ensuring that during initial teacher training in the future all prospective teachers are provided with accredited restraint and behaviour management skills such as team teach, which has proved to be so successful in the restraint of children with special needs.
Amendment No. 574 concerns parenting orders. We all accept that we must address antisocial behaviour and the need to exclude pupils. I do not object in principle to parenting contracts or orders, with the proviso that the parents do not present special educational needs at a level that prevents them from engaging meaningfully in the contract or from understanding the nature of the order. I am sure that all members of the Committee are aware that parents of many children with special educational needs also have special educational needs themselves. As the Committee can probably tell, I am a mother of a child with special needs. I am also dyslexic. I find it difficult to read from speaking notes because I cannot sequence words. I will stumble 20 or 30 times while reading from notes. It is much better for me to speak without them.
Many parents have more complex special needs than I do. They cannot understand sequencing or the written word. Parenting orders must be understood by the parents to whom they are issued. I remind the Government that two thirds of children who are excluded from school have special educational needs and that 27 per cent. of them are autistic. Many parents are under considerable stress as they act as carers and advocates for their disabled children.
To introduce measures that pass the responsibility for the excluded special needs child to the parent rather than considering first whether the child’s behaviour may be a direct consequence of having failed to receive the appropriate education in a suitable environment must not be disregarded, or we could be responsible for creating social injustices rather than addressing the needs of the child. We have recently learned about the tragic consequences of a young mother who was depressed and under pressure, and who took her life and that of her autistic child, so let us consider whether, in our need to deal with exclusion and poor behaviour, we could in haste punish the wrong parents and further burden good, caring parents who are struggling to meet the needs of their disabled children through unfair parenting contracts and orders. The fact that a child’s special educational needs and disabilities might have led to their exclusion rather than poor parenting must be reflected in the Bill.

John Hayes: My hon. Friend the Member for Mid-Bedfordshire (Mrs. Dorries) spoke with passion and compassion in support of her amendments, but also gave a thorough analysis of some issues associated with this part of the Bill.
Although my hon. Friend made a persuasive case, my first instinct was to resist her amendments, because I fully appreciate that the Government are approaching the matter against a sorry history of increasing disruption and even violence in schools, which is doing immeasurable damage to pupils’ quality of life, the morale of teachers and all associated with school families. Of course, that is not the common experience of every school in the country, but it is all too frequently the experience of schools, some of which are in the most difficult areas, dealing with the most challenging pupils. Given all that, I am extremely sympathetic to the Government’s conversion—it is perhaps a late conversion, but let us not be churlish—to the cause of better school discipline.
However, my hon. Friend made a compelling case in respect of special needs pupils. It seems to be common sense—I hope the Minister will not dispute this—to take a look at the impact of the changes on special needs children in particular. Children with physical special needs or disabilities that might affect their behaviour, and children with emotional or behavioural difficulties—which will, implicitly, affect their behaviour—will require very different regimes from other children, as my hon. Friend pointed out. Good teachers know that, of course, and good practice would, by its very nature, take that into account, but it does not seem unreasonable to suggest that that might form part of the Bill.
My hon. Friend went on to talk about the repercussions of her argument for things such as school transport—for example, she talked about the effect of detention on arrangements to get very vulnerable children to and from school, and again made a compelling case on that point. She spoke about the training and preparation of staff dealing with those difficult situations.
I expect that my hon. Friend tabled the amendments to probe the Minister—it is not for me to make that judgment, but that is probably her intention—and she has done the Committee a service. It is important that all the points that she made and that I amplified are taken into account. Certainly, I was initially sceptical about the amendments, but there is a case to answer, and we look forward to the Minister answering it with his usual accomplishment.

Annette Brooke: I, too, broadly support the amendments. The hon. Member for Mid-Bedfordshire made some very good points, and I share her concern about the enormous proportion—60 per cent., I believe—of pupils with special needs who are subject to secondary exclusions, or discipline, in other words. As she said,27 per cent. of children with autism have been excluded, with 23 per cent. being excluded more than once. That figure really does tell a story.
However, in some ways I was heartened by reading the draft regulations, “Values into principles”, which we were supplied with just the other day. There are some excellent sections in that document. I agree with those in which a range of vulnerable pupils are identified. We shall shortly come to some rather broader amendments on the subject, tabled by my hon. Friend the Member for Brent, East, and me. For example, they deal with picking up looked-after children, which we think falls into the category of circumstances of that sort.
When we get to the right point, I shall talk about young carers, who should be mentioned in the regulations. The general principle that vulnerable pupils should be supported would therefore become part of the behaviour policy, and I endorse that. It would not lead to a lack of discipline, but would be an appropriate reaction to behavioural problems. That is the key, because bad behaviour must not be ignored, and the reaction to it is all important. That, I hope, is what we are all saying.
Although the issue is dealt with in the draft regulations, there is a compelling case for including provisions in the Bill. What happened in the past is on the record, but the easy solution for some schools, as we are all aware, is to exclude children, rather than address the issues. That could be because staff have not received adequate resources or training, or because of all sorts of other reasons, but I would rather that there was something in the Bill to strengthen the provisions.
I have a further question about an issue that rather worries me. This is the heading for this group of clauses:
“Certain schools required to have behaviour policy”.
However, why should only certain schools be required to have a policy? There should be no school without a behaviour policy in this day and age. Can I be assured, therefore, that the draft regulations, which I have taken the trouble to praise, will apply to academies and other schools that are not listed in the clause?

Jim Knight: It is a pleasure to take the baton back from my hon. Friend the Under-Secretary. While mentioning him, I should also congratulate him on the award of the world skills games to London.
In addressing the amendments, I pay tribute to the hon. Member for Mid-Bedfordshire for the passion and experience that she brings to bear on these issues. Throughout the Committee’s discussions, she has wanted to raise her concerns about children with special educational needs, and I pay tribute to her for her work on the issue. Although all members of the Committee share her concerns, it falls to me to demonstrate to her satisfaction, and that of the rest of us, that the Bill satisfies her requirement to meet the needs of such children.
On amendment No. 570, the principles underlying a school’s behaviour policy must cover the full range of relevant issues, including how the policy will apply to pupils with special educational needs and disabilities. However, it makes no sense to set out all that detail in primary legislation, not least because that would make it difficult to adjust to changing circumstances. Clause 75 therefore requires governing bodies to have regard to statutory guidance when setting principles and giving guidance to the head.
Hon. Members have seen the illustrative guidance linked to clause 75, which makes it clear that the governing body should consider including principles relating to support for more vulnerable pupils, including those with special educational needs and disabilities, as well as migrant, refugee and looked-after children, whom the hon. Member for Mid-Dorset and North Poole (Annette Brooke) mentioned. That would, of course, include ensuring that the school’s behaviour policy took account of all its pupils’ needs and capabilities from its inception.
The amendment tabled by the hon. Member for Mid-Bedfordshire would seek adjustments once the policy had been established, but it would be better to have the provisions set out from the start so that they could inform thinking. The guidance that the Committee has seen is purely illustrative. I can assure the hon. Lady that my officials and I will look at the text again in the light of her concerns to see whether we need to strengthen it further to deal with the needs of vulnerable pupils.
On amendment No. 571, clause 78 makes it clear that for a penalty to be reasonable, and therefore lawful, school staff must take account of a pupil’s special educational needs in deciding whether to impose a penalty and what penalty to impose, including detention. The hon. Lady rightly mentioned transport for special educational needs pupils, and clause 78 requires school staff, in imposing any disciplinary penalty, including detention, to take account of any special circumstances affecting a pupil. That certainly includes transport arrangements.
I hope that that gives the hon. Lady some satisfaction. It is a solid statutory safeguard against the unreasonable imposition of detention on a pupil with special educational needs.
It is also right and proper for parents to receive24 hours’ notice of detention to avoid the obvious concerns about their child’s whereabouts and safety. However, given what I have said about transport, adding a requirement to notify the local authority as well crosses the line between practical necessity and bureaucracy. I am not convinced that such notifications would be of sufficient practical value to the local authority, the school, the parents or, most importantly, the child.
The same applies to appending such notifications to the annual review report. If the behaviour of a particular child is an issue, that must inevitably be discussed as part of the annual review. Detention records, which schools normally keep as a matter of course, might be relevant evidence, but I am not convinced that extra pieces of paper would necessarily help.
I turn to amendment No. 573, which I assure the hon. Lady is also unnecessary. Clause 80 does not give school staff carte blanche to use force. Subsection (1) makes it clear that they have power to use only
“such force as is reasonable in the circumstances”.
They cannot use unreasonable force.
Force should be used as a last resort. We shall discuss that during debate on the relevant clause, but clause 80 means what it says. In deciding whether to use force and what sort of force to use, school staff will have to take account of all the relevant circumstances. Those will certainly include a pupil’s special educational needs or disability.
In addition, the Department already provides detailed guidance on the use of force in schools, including guidance specific to pupils with special educational needs and disabilities. We shall discuss that when we come to amendment No. 572, and we will review the guidance in the light of debates on the Bill with a view to making further improvements.
On amendment No. 574, I do not see parenting contracts as a substitute for identifying and making appropriate provision or reasonable adjustments for pupils with special educational needs or disabilities, although such pupils can benefit as much as others from parenting contracts and their parents might well need support and improvement in their parenting skills.
However, the amendment is unnecessary. Safeguards are already in place for children with special educational needs, including the special educational needs code of practice, the Education Act 1996, which placed schools and LEAs under a duty to identify, assess and make suitable provision to meet a child’s special educational needs, and the Special Educational Needs and Disability Act 2001, which extended disability discrimination legislation to education providers.
Our existing guidance on parenting contracts and the illustrative guidance provided to the Committee fully restate schools’ and LEAs’ duties. Our guidance also recognises that the issues behind misbehaviour can be complex and that the common assessment framework should be used to identify them unless concerns suggest an urgent need for specialist assessment.
To respond to a question put by the hon. Member for Mid-Dorset and North Poole about whether the provisions would apply to certain schools or to all schools, I shall make a concession that I hope will be welcome to her party in an amendment that we are about to discuss. I hope that it will clarify the matter to her satisfaction and that, on the basis of all that I have said, the amendments will be withdrawn.

Nadine Dorries: I am delighted by the Minister’s response. We might finally have a schools Minister with some compassion and understanding of the problems faced by children with special educational needs. I shall not get too excited, but he seemed to have some understanding of the problems encountered, which is more than I can say for some previous incumbents of his post. However, I do not want to spoil things. I am delighted by his comments, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Nadine Dorries: I beg to move amendment No. 374, in clause 75, page 59, line 1, leave out subsections (2)to (4).

Frank Cook: With this it will be convenient to take clause stand part.

Nadine Dorries: I hope that this will prove helpful. Is the Minister aware that paragraphs 664 to 666 on page 91 of the explanatory notes are about parenting orders and contracts in relation to article 8 of the European convention on human rights? Has he considered that parents of a disabled child or a special needs child might be housebound during school hours and may have redress under the convention and that article in particular? Has he considered also how these provisions may affect them? They might lack in terms of those rights; they might lack the ability to have a proper family life.
Once the Bill has been enacted, I would not be surprised if somebody challenged it under the Human Rights Act 1998 and article 8, because it will, in effect, imprison parents of disabled or special educational needs children within their home if those children are excluded. That is all that I wanted to raise in the clause stand part debate. Will the Minister consider that point?

Jim Knight: Perhaps you can help me, Mr. Cook. Has amendment No. 374 been moved? Should I therefore respond to it, or should I simply respond to the point being made by the hon. Lady?

Frank Cook: Amendment No. 374 has been moved. As the Government’s spokesman, the Minister can react to that amendment and answer whatever points have been raised in relation to it. I would have thought that that was common practice.

Jim Knight: I am, as ever, most grateful to you,Mr. Cook. I was just not clear about the procedure in respect of that particular amendment, which, as I understand it, seeks to remove a series of elements in the clause that would effectively require the governing body to introduce policies designed to promote good behaviour and discipline, but does not set out how that should be done. The amendment is not appropriate; everyone involved in the community of a school should be able to have the expectation that there is guidance in statute as to what the behaviour policy should look like and what the governing body should do in respect of it. I will resist the amendment, but I shall not dwell on it, because the hon. Member who tabled it is not present.
The hon. Lady made comments about the Human Rights Act 1998. Clearly, the previous Secretary of State included in the Bill the statement that she is satisfied that it is compatible with the European convention on human rights. I have no reason to challenge that.
The hon. Lady raised the question of special educational needs families effectively being housebound. We shall discuss that in later clauses, but my reading of things is that there is not a requirement for children to be kept at home; they just have to be kept out of a public place. Clearly, a good parent would want them to be in a place of safety, but that need not be at home or with the parents. The individual parent would have to make such an arrangement. I hope that that helps the hon. Lady, and that the Committee will allow the clause to stand part of the Bill.

Nadine Dorries: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 75 ordered to stand part of the Bill.

Clause 76

Determination by head teacher of behaviour policy

John Hayes: I beg to move amendment No. 390, in clause 76, page 59, line 36, leave out ‘may' and insert ‘shall'.

Frank Cook: With this it will be convenient to discuss the following amendments: No. 391, in clause 76, page 59, line 38, leave out
‘to be taken with a view'
and insert ‘in order'.
No. 414, in clause 76, page 59, line 39, leave out ‘promoting' and insert ‘promote'.
No. 415, in clause 76, page 59, line 41, leave out ‘encouraging' and insert ‘encourage'.
No. 416, in clause 76, page 59, line 42, leave out ‘preventing' and insert ‘prevent'.
No. 417, in clause 76, page 59, line 44, leave out ‘securing' and insert ‘secure'.
No. 418, in clause 76, page 59, line 45, leave out ‘securing' and insert ‘secure'.
No. 419, in clause 76, page 59, line 47, leave out ‘otherwise regulating' and insert ‘regulate in other respects'.
No. 392, in clause 77, page 60, line 25, leave out ‘could reasonably be' and insert ‘is'.
No. 393, in clause 77, page 60, line 32, after ‘regulate', insert ‘and impose standards on'.
No. 397, in clause 84, page 64, line 36, after ‘regulate', insert
‘or otherwise impose standards on'.

John Hayes: We are beginning to have an interesting debate on school discipline. That is a legitimate debate, given that a recent survey revealed that 44 per cent. of British parents—more than in most other European countries, including Germany, Spain and France—agreed that there was not enough discipline at their children’s schools. The Government clearly acknowledge the problem, otherwise this clause would not be in the Bill, but it is important to say that the official Opposition acknowledge it, too, and the aim of our amendments is to tighten the measures further.
On May 8 last year, the Independent on Sunday reported that teachers are now being assaulted by pupils at the rate of one a day. Statistics compiled by teachers’ leaders show that attacks have more than doubled in a year. It is estimated that more than 270 serious assaults are carried out on teachers every year, and some of them are so serious that the victims require hospital treatment. That is having a profound effect not only on the life of schools but, even more importantly, on the ability of us all to attract people to become teachers, to work in schools and to stay in schools. It is wearing teachers down. It is also having an effect on the many children who are not poorly disciplined and who behave perfectly well. It is disrupting their education and stunting their opportunities.
We are absolutely right to champion the cause of more discipline in schools, for the sake of both children and teachers. That is what this part of the Bill does and that is why we support it fully. However, we want to go a little further. One of the key elements is the ability of teachers to restrain children in a reasonable way, as the Bill suggests, when violent or potentially violent incidents occur. For a long time, teachers have felt emasculated; they have felt powerless to deal with such matters for fear of repercussions. We have become a society in which litigation is a constant fear in such circumstances. That is particularly sad when teachers are trying to do their best, and so many of them do such a good job in schools throughout the country. Once again, I want to put on record, so that there is no doubt about it, the commitment of the Conservative party to the teaching profession, and our further commitment to elevating the status of teachers and celebrating their good work. One way in which we can do that is to ensure that they have the necessary powers when it comes to discipline.
Amendments Nos. 390 and 391 seek to tighten the provisions by replacing “may” with “shall” and “taken with a view” with “in order” in subsection (1). Amendments Nos. 414 to 419 would, I think the Minister will agree, improve the grammar a little. In the generous spirit with which this Committee has been imbued, I am sure that he will grasp these amendments with the alacrity that will do him immense credit. He will not want a Bill that is drafted less well than it might be, and we have been happy to suggest these minor improvements.
The aim of this part of the Bill is to improve school discipline. Our amendments Nos. 391 and 391 are designed to ensure that the disciplinary measures are enforced in practice. The Minister might argue that that would limit the discretion of head teachers. However, I do not know many head teachers or teachers who would not want clear signals from the Government about precisely what steps will be taken to increase their powers to deal with what in some schools has become quite a desperate situation.
I do not want to exaggerate this matter because, as I said earlier, in many schools things are working well. Much good work is being done in schools across the country and not every school is in chaos. However, having said that, more than 60 children are suspended or expelled for violent behaviour each day in London schools according to an investigation conducted in December 2005 by the Evening Standard, which reported at least 13,020 suspensions and expulsions for physical and verbal assaults on teachers and other pupils in the previous year. That is not acceptable, and the Government know it, as do we, the teaching profession and the wider public. We have an absolute duty to get behind our schools and teachers and to put good discipline back in place. A disciplined environment is one in which good teaching and learning can take place; an ill-disciplined one will mean that neither happens.

Jim Knight: I shall speak about this group of amendments in three parts. First, I shall speak to the amendments to clause 76, of which amendment No. 390 is the most substantive. As drafted, clause 76(1) enables a head teacher to include rules and provision for disciplinary penalties in the measures that constitute a school’s behaviour policy. I cannot imagine the circumstances in which any head would not include rules and disciplinary penalties in a school’s behaviour policy, so there is no reason I can think of for not making their inclusion mandatory. I therefore welcome the amendment in principle and undertake to introduce a Government amendment with a similar effect on Report.
However, I cannot give a similar commitment on amendment No. 391, to which amendments Nos. 414 to 418 are consequential. The hon. Member for South Holland and The Deepings said that they involved minor improvements and I hope that he will accept my argument and not press them. Subsection (1) requires a head to determine measures “with a view to” securing an acceptable standard of behaviour by pupils. The focus is on the intentions behind the measures and the test of lawfulness would be whether the measures were capable of securing the outcome.
The term “with a view to” is often the best wording when the underlying idea is that everything possible is to be done to achieve a goal but it is unrealistic or unreasonable to suppose that the goal can always be attained. I am not a lawyer, but I have been advised that replacing “with a view to” with “in order to” would shift the focus to the outcome of the measures. For example, it could be argued that a head whose school Ofsted judged to have inadequate standards of behaviour had acted unlawfully because the measures that he had determined in good faith, acting reasonably, had not worked. I think that that is going too far.
Mr. Hayesindicated assent.

Jim Knight: I see the hon. Gentleman nodding and hope that he agrees. With that in mind, I ask him not to press those amendments.
Amendment No. 419 would replace the expression
“otherwise regulating the conduct of pupils”
with “regulate in other respects”. Clause 76(1)(e) is there to ensure that heads have the widest possible scope for determining measures to promote good behaviour—something that the hon. Gentleman anticipated I would say. The proposed change of wording would not enhance the provision because it would have no practical effect. That is our reading of it; again, I think that it deals with a relatively minor issue, and I hope that he will not press it.
Amendment No. 392 would significantly change the effect of clause 77. As drafted, subsection (1) of that clause defines a disciplinary penalty as
“a penalty imposed on a pupil...where his conduct falls below the standard which could reasonably be expected of him”.
The amendment would remove the reasonableness requirement, which is qualified by the word “could”. Unfortunately, some pupils can find new ways to make mischief, which might not be expressly condemned by the school. For example, there might be a rule that no one should cycle around the playground for reasons of safety. If a pupil decided to skateboard around the playground, on the existing wording one could deduce, by analogy, that he “could reasonably be expected” not to do so. If the words used were “is expected”, however, the school would have to list exhaustively myriad forms of bad behaviour and list skateboards, scooters and whatever else children should not career around the playground upon. It could be argued that the school should expressly have prohibited skateboarding around the playground, which would be impractical. Aside from that, the word “reasonable” makes it clear that those standards cannot be draconian. I want to make it clear that the words used do not prevent the school from expecting high standards of pupils; they ensure that the standards expected are reasonable.
Amendment No. 393 seeks to supplement the reference in clause 77 to a school regulating a pupil’s conduct with the words “and impose standards on”. The “Oxford English Dictionary” defines “to regulate” as “to control by rule”. In practice, rules are the way in which schools impose standards of behaviour on pupils, which means that references to regulation encompass the imposition of standards, so the amendment is unnecessary. The same applies to amendment No. 397 to clause 84. There is no benefit in adding superfluous words to legislation, but there is a risk, which I shall refer to again in respect of a later amendment. That may bring some satisfaction to the Committee—again, I tease.
The courts assume that every word in statute is intended to have a distinct and separate meeting, so they would try to find one. That means that the actual effect might be one that neither the hon. Members who tabled the amendments nor I want. With that in mind, I ask the hon. Gentleman to seek leave to withdraw his amendment.

John Hayes: I am grateful for the Minister’s concession in respect of amendment No. 390. His concession was made with good grace. We acknowledge what he said about wanting to replace “may” with “shall”, because as he said, it is almost impossible to imagine a circumstance in which a head teacher would not take the action that we want them to take to bring about the effects of the Bill.
With regard to amendment No. 391, the Minister made the most elegant rebuttal of the argument, based on what he described as legal advice about the risks of using the phrase “in order”. He argued convincingly that if those words were used, a headmaster might find themselves in some legal difficulty if the outcome that they had anticipated did not come to pass. It is critical that people have a clear view about the likely effect of all disciplinary measures. That relates to comments made from the Government Benches and by my hon. Friend the Member for Mid-Bedfordshire in respect of an earlier group of amendments. Disciplinary measures must be measured by the perceived and actual effects that they have on those being disciplined, but I take the Minister’s point that we do not want to put head teachers into an impossible position in which they might face legal challenge.
The Minister’s arguments in respect of what I describe as amendments relating to language, rather than to the spirit of the provisions, seem debatable—but why would we want to make a meal of what is just a snack, albeit a nutritious one? I shall not resort to the sentiment expressed by Lynne Truss, who has become both famous and, I presume, somewhat richer by focusing on the details of language. She says:
“I tend to believe there is no point confronting the perpetrators of this ignorant stuff because they always say the same thing: ‘It doesn't matter.’”
The Minister is neither ignorant, nor so rude. He made a good case and, in response, I am happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Annette Brooke: I beg to move amendment No. 73, in clause 76, page 60, line 13, at end insert—
‘(4A) Subsection (4) applies only—
(a) on the journey to and from school; and
(b) during work experience placements.'.
I shall first quote the exact passage to which the amendment refers, which is important:
“The measures which a head teacher determines under subsection (1) may, to such extent as is reasonable”—
what is reasonable is the thrust of my question—
“include measures taken with a view to regulating the conduct of pupils at a time when they are not on the premises of the school and are not under the lawful control or charge of a member of the staff of the school.”
The amendment is a probing amendment, because it is very difficult for teachers to have any idea of what is “reasonable”.
I must confess to having two hats: one as an MP and councillor, wanting the schools to control pupils when they misbehave in the park and goodness knows where, and one as a teacher, thinking the proposal grossly unfair. When I have worked hard all day, should I be responsible for the pupils when they are outside the school gates? That is a genuine dilemma. We had a highly publicised event in a Bournemouth school, when a strong female head teacher took action against a large number of pupils on the pavement outside the school. That was unpopular with parents, but incredibly popular with the general public.
What exactly do we mean by “reasonable”? I hope that the term would definitively cover outside and around the school. That seems crystal clear, as misbehaviour there can be a great nuisance. The amendment seeks to clarify whether we mean
“on the journey to and from school”.
The wording is clearly less than perfect, because the journey might be over some distance, but there is sometimes a problem with litter that has clearly been left by a particular cohort of pupils from a school.
As I have probably said before, I live a quarter of a mile from the grammar school in our town and a quarter from a mile from a comprehensive school. In the morning the grammar school boys cycle rapidly on the pavement outside my house to get to school and in the evening the comprehensive school pupils go at high speed down the same pavement outside my house, causing equal disturbance, even though there is a cycle track in the road. That is dangerous, and it is that sort of issue to which one would hope that the head teacher would be responsive when it is raised, but where on earth is the Minister drawing the line? How is the term “reasonable” going to have any real meaning?
Are the staff responsible 100 per cent. of the time on a school trip away from home, when young people are let out to do something in the evening? That seems a tricky area. An awful lot of questions can be raised about work experience placements. I absolutely agree with the principle that the school has a role to play in some clear areas, but where is the balance as to the responsibility of the school, head teacher and parents? When does something become the local police’s responsibility? When the disturbance is in the local park, it is all too easy to say, “Oh, it’s those youngsters from that school.” There is a balance to be drawn, and if the provisions are to have any effect, they must be clear.
To underline the point, I should say that academies do not seem to be mentioned. I have no confidence that pupils attending academies would be any better behaved out of school than, for instance, some pupils attending my local grammar school on their bicycles. I would like to be assured that all schools and pupils are covered. With that, I invite the Minister to respond, which might trigger a few more points.

John Hayes: I am always mindful of your advice to members of the Committee, Mr. Cook, to stand up quickly and straight, so I apologise if I am a little too quick.
As the hon. Lady said, the amendment would limit the new powers to discipline pupils’ behaviour outside school to journeys to and from school and to work experience placements. I understand her argument. There is an issue about where and how schools’ responsibilities begin and end. Where do such matters become the responsibility of other agencies? She mentioned the police and others. In the end, however, I am inclined to the opposite view, because there are occasions on which children are outside school, such as in lunch hours. We spoke earlier about the desirability of keeping young people on the school premises during lunch periods, but we know that that does not always happen. If a teacher who was enjoying a lunchtime stroll saw children behaving in a way that he was not happy with, it would be entirely inappropriate for him not to have the power to do something about it. The amendment would have the effect of rendering him or her powerless.
Similarly, there are a number of other occasions on which one could imagine a young person outside school, not on their journey to or from school and not on a work placement, interfacing with a member of staff. I am highly sceptical about the amendments, but I look forward to the hon. Lady persuading me in a pithy intervention.

Annette Brooke: I just wanted to make it clear that the amendment is intended to probe. It is pretty clear in my book that immediately outside the school it is difficult to know what “reasonable” means, and I think that the hon. Gentleman would agree. How big a radius is going to be drawn?

John Hayes: I acknowledge that the hon. Lady made that clear in her opening remarks. She said that this was a probing amendment to test the Government on the detail. I wanted to emphasise in my brief contribution that, if anything, I would err in a direction opposite to the likely effect of the amendment. We need to take a broader view of where discipline begins and ends, and anything we do to limit the power of teachers in that respect is likely to be unhelpful. Like her, however, I shall be interested to hear the Government’s response.
The powerful point the hon. Lady makes is that there must be clarity. If we are going to extend teachers’ powers in the way that we all want, it must be clear where the responsibilities lie and what they are, and where power is limited. To that extent, the Minister’s response will be of great value.

Jim Knight: As we have heard, subsection (4) deals with the behaviour of pupils when they are out of school and not supervised by school staff. The subsection enables a head teacher to regulate their behaviour in those circumstances to such an extent as is reasonable—the key word.
I accept that the hon. Member for Mid-Dorset and North Poole said that the amendment was a probing one, and I shall seek to help. In essence, we are striking a balance between clarity and flexibility. The amendment does not cover the full range of circumstances in which a head might need to punish a pupil for bad behaviour outside school. I understand that, and she has said so, but neither would it be sensible, for example, to prevent a school from punishing a pupil for misbehaviour at a further education college in which he or she was receiving part of their education or for verbally abusing a school staff member over the weekend.
Should we add details of all the circumstances in which out-of-school behaviour can be regulated in the Bill? I do not think so. I have a whole list of different examples, which I shall not detain the Committee with. Subsection (4) specifies that out-of-school behaviour can be regulated by the school only
“to such an extent as is reasonable”.
That formulation was accepted by our stakeholder group on behaviour and attendance, in which all the professional associations are represented. They and I believe that we should leave it to the good sense and experience of head teachers to determine what is reasonable in the individual circumstances of their schools. There is no duty on teachers and staff to regulate conduct off the school premises, but there is a power for them to do so if that is reasonable. We shall provide guidance and examples to schools on when we think it is reasonable to use that power. In time, I hope that that will satisfy the hon. Lady, even if she is frustrated about the matter now. Regarding her question on academies, the powers in clauses 77 to 81 extend to academy staff. On that basis, I hope that she will seek leave to withdraw the amendment, particularly as it was probing in nature.

Annette Brooke: I thank the Minister for his reply and look forward to seeing the guidance that he mentions. I accept completely that we cannot have an exhaustive list. I hope that cycling on the pavement will come within the guidance, because it affects me personally. That is the problem, is it not? The incidents that affect us personally come to our attention. If members of the public become aware of the provision, they will be quite demanding of head teachers. That is why the guidance will be important, so I ask that teachers’ unions be fully consulted on it. With that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 76 ordered to stand part of the Bill.

Clause 77

Meaning of “disciplinary penalty”

Sarah Teather: I beg to move amendment No. 543, in clause 77, page 60, line 24, after ‘him', insert
‘by a person having the lawful authority to impose such a penalty,'.

Frank Cook: With this it will be convenient to discuss the following amendments: No. 544, in clause 78, page 60, line 43, leave out from ‘prohibition' to end of line 44.
Government amendment No. 106.
No. 545, in clause 78, page 61, line 3, after ‘school', insert
‘, except in circumstances where the head teacher has determined that the imposition of the penalty on the pupil is not reasonable in all the circumstances'.
No. 551, in clause 78, page 61, line 8, leave out
‘on behalf of the school'.
No. 546, in clause 78, page 61, line 12, leave out ‘(3)(b)' and insert ‘(4)(a)'.
No. 547, in clause 78, page 61, line 25, leave out ‘A determination or' and insert ‘An'.
No. 548, in clause 78, page 61, line 26, leave out‘(a) or'.

Sarah Teather: These amendments are technical and probing. Amendments Nos. 543 and 551, which need to be taken together, probe whether “school” is the right legal term, as there is a difference between legal personality and legal identity. A legal personality is an essential prerequisite for being able to exercise legal power or perform a legal duty, whereas institutions such as schools have a legal identity. Without the ability to hold legal powers, they cannot be sued.
Normally, it is local education authorities or governing bodies that are referred to in legislation, as they have a legal personality. Governing bodies are statutory corporate bodies and have powers and duties such that they are subject to legal action. However, as schools do not, we are querying whether “school” is the right term. Use of it is also probably superfluous.
Amendment No. 544 is also a probing amendment. We are concerned that the wording in subsection (3)(b) of clause 78—the amendments cover both clauses 77 and 78 because of the way in which they have been grouped—may leave space for frequent challenge by parents who may consider that imposition of the penalty would be unlawful on the basis that it was unreasonable. We are querying whether it might be better to remove that reference and trust the judgment of head teachers in this regard, as it could still be challenged on the basis that the behaviour was irrational under the normal legal powers governed by statute. The question is whether the wording may leave too much space for challenge.
Amendments Nos. 545 and 548, which are also probing amendments, are partly covered by the Government amendment in the group. There appears to be a contradiction between subsections (4)(a) and (8)(a) of clause 78 in respect of head teachers conferring powers. There is a question as to whether subsection (8)(a) fits with an authorisation givenunder subsection (4)(b) rather than a determination under subsection (4)(a). The wording appears to be slightly contradictory, and we are querying whether it might be more tightly drafted and whether the right terms have been used.

Jim Knight: I agree with what the hon. Lady said about these being technical amendments. Sadly, because they are technical, my explanation will be technical, but I hope that I will keep everyone lively.
I am grateful for the attempts at technical improvement in amendments Nos. 543 and 551. In this case, I am not convinced that the references in clauses 77 and 78 to a school taking action or being acted on behalf of are defective. Although schools do not have separate legal personalities, as the hon. Lady said, there are statutory references to action being taken by a school that are perfectly clear in context, as I believe are the references in question. I am satisfied on that point; it would not make sense for clause 77(1) torefer to
“a person having the lawful authority to impose such a penalty”,
because technically an authorised person necessarily has the authority needed in order to impose it.
If amendment No. 551 were accepted, clause 78(2) would require that a decision to impose a penalty and its implementation occur on a school premises or
“elsewhere at a time when the pupil was under the lawful control or charge of a member of staff of that school.”
Not all disciplinary penalties will be implemented at a school or while the pupil is in the charge of a member of staff. For example, if a member of staff set a pupil additional homework, that work would probably be completed, and action taken to implement it, at home or at least not at school or while under staff supervision. If the amendment were accepted, that additional homework penalty would be unlawful.
The words “on behalf of the school” make it clear that persons who decide to impose penalties and take actions to implement them for the school—members of staff—must be on the premises or in control or charge of the pupil in question when doing so.

Sarah Teather: Could such action not be defined as on behalf of the head teacher who has a legal identity?

Jim Knight: It could possibly. I was given very long speaking notes to explain the potential tautology that might be created by the amendment, and frankly I failed to understand it until I read them a fourth time. I do not want to go too far down that road, but if the hon. Lady would like me to send her a copy of those notes to help her understand, I am perfectly happy to do so.
It would be possible to amend clauses 77(1) and 78(1) to say
“on behalf of the head teacher”,
but that would not be any real improvement. We think that the provisions are clear as they stand, and I am reluctant to agree to the amendments for the sake of it. I hope that with those assurances, the hon. Lady will seek leave to withdraw her amendment.
Government amendment No. 106 is designed to repair a defect in the Bill. Our intention has always been to qualify the general power of paid members of staff to impose disciplinary penalties on pupils with a power for the head to decide that particular members of staff should not have the power to impose a particular penalty. We believe that that is necessary because in some circumstances heads would need such a power. For example, clause 79 allows schools to impose weekend detentions. That is a serious provision and schools should use it sparingly. A head teacher might reasonably decide that final decisions about such detention should be made only by year heads or other senior managers.
On amendments Nos. 544 to 546, clause 78 specifies the conditions under which a disciplinary penalty may be lawfully imposed on a pupil. One of those is that the imposition of the penalty must be “reasonable”—that word again—“in all the circumstances”. That condition will apply to every individual member of staff who imposes a penalty. The amendments would remove that responsibility from members of staff and make the head teacher the judge of whether a particular penalty imposed by a particular member of staff on a particular pupil was reasonable. Clause 78(6) requires that staff have regard to the proportionality of the punishment in the circumstances of the case—the pupil’s age and any special educational needs, disabilities or religious requirements.
There are at least two reasons for not accepting the amendments. First, there is a point of principle: surely it is right to expect school staff to behave reasonably and to accept personal responsibility for doing so. It follows that the law should say that. Secondly, there is a practical reason: in a school of any size, it would be wholly impractical for the head to have to authorise every single penalty that any member of staff wants to impose on any pupil in advance of that decision being made and implemented. Such provision would also remove the professional autonomy of teachers and other staff. I could continue, but I hope that I have said enough to convince the hon. Member for Brent, East not to press those amendments.
Amendments Nos. 547 and 548 would limit to unpaid staff such as parent volunteers the head’s ability to determine whether particular individuals or groups of staff may impose particular penalties on particular pupils. That would be wrong. As I said, our intention has always been to qualify the general power of paid members of staff to impose disciplinary penalties on pupils with a power for the head to decide that particular members of staff should not have the power to impose a particular penalty.
As discussed, Government amendment No. 106 will reinstate the required words. We consulted key stakeholders on a version of clause 78 that included that qualification. They agreed that that was sensible and necessary. If the amendments were accepted, the head teacher would not be able to determine that, for example, only heads of years should be able to put pupils in detention or to oversee one. That would not allow schools to make disciplinary arrangements, so I urge the hon. Lady not to press the amendment.

Sitting suspended for Divisions in the House.

On resuming—

Frank Cook: I was trying to predict whether we would have more than one Division when the first was called. I thought that it was improbable because of how the debate had been going—I watch it on the screen at the same time as listening to the debate here—but little did I expect there to be three Divisions in rapid succession. There may be a fourth Division before 7 o’clock. Having offered my regrets, I can hardly apologise for something that was not my fault.

Sarah Teather: I thank the Minister for his considerable explanation of complicated techie amendments. I should be grateful if he could provide the lengthy detailed notes so that we can discuss them with members of the group who pointed out the error. That would be helpful. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 77 ordered to stand part of the Bill.

Clause 78

Enforcement of disciplinary penalties: general

Amendment made: No. 106, in clause 78, page 61, line 3, after ‘school' insert
‘, except in circumstances where the head teacher has determined that the member of staff is not permitted to impose the penalty on the pupil'.—[Jim Knight.]

John Hayes: I beg to move amendment No. 394, in clause 78, page 61, line 6, at end insert
‘or
(c) by a pupil (to be known as a prefect) properly authorised by the head teacher to impose the penalty.'.

Frank Cook: With this it will be convenient to discuss the following amendments: No. 395, in clause 78, page 61, line 26, leave out ‘or (b)' and insert ‘, (b)or (c)'.
No. 396, in clause 82, page 64, line 4, at end insert
‘with the exception of a pupil at the school'.

John Hayes: We are making good progress, Mr. Cook, under your steady—

Frank Cook: Let us continue to do so.

John Hayes: You are too quick for me. I was about to say under your steady guidance.
Under the clause, paid and other members of staff have the power to impose penalties on pupils. However, subsection (8) gives the head teacher the power to define as a member of staff particular pupils, which I suppose means prefects. The amendment would remove the anomaly of defining prefects as members of staff by including a new subsection 4(c), to extend these powers to a
“pupil (to be known as a prefect) properly authorised by the head teacher to impose the penalty.”
We fully appreciate that occasionally schools will need to empower members of the school community, such as prefects, to enforce discipline. It is a good thing. I was a prefect at school as, I imagine, Mr. Cook, you were. Indeed, many members of the Committee look like they would have made excellent prefects. Prefects can play an important role in maintaining good order in the school community. We have no problem with the essence of that part of the Bill. It seems common sense.
However, it is important that we get the detail right. It seems odd that we describe, or define in law, prefects as members of staff. The Minister may claim that that is for legal reasons and say that, in light of any possible legal challenge, it is important that the same legal protection is afforded to prefects as to other members of staff. I bet that that is in his briefing, which he is about to share with us. Undoubtedly, it will be a useful contribution to our considerations.
However, it is most important that we do not get the details wrong. As the hon. Member for Mid-Dorset and North Poole said earlier, clarity in this part of the Bill is vital. It is a sensitive area and there is always the possibility of legal challenges, as the Minister made clear in response to earlier amendments. We must be even more certain of the effects of our good intentions in this clause than in other parts of the Bill, and our amendments are intended to probe the provision.

Sarah Teather: I am a little dubious about putting too much emphasis on the role of prefects in providing discipline. Their role is usually in mentoring and support, as they are likely to be under the age of 18, and certainly under the age of 19. Focusing on discipline would be unwise. It is likely to break down the supportive relationship that prefects have with their peers, especially in a house system when they can encourage competition and the raising of standards and behaviour. The amendment is designed to probe the Government’s intentions.
It is not clear to me where the Conservatives are coming from—[Interruption.] Yes, I was going to say “Tom Brown’s Schooldays”, but that is probably inappropriate. We need to be careful about the responsibility that we place on young people who are not legally responsible for other young people in their care.

Jim Knight: I delighted to have this opportunity to discuss prefects. I confess that I, too, was a prefect and so was my daughter, at the age of 15, which underlines the hon. Lady’s point that prefects may not be 19, or even 18.
We considered the matter very carefully when the clause was drafted and took advice from the six main professional teaching associations and other key stakeholders in the ministerial group on behaviour and attendance. Our conclusion was that it would be inappropriate to give the statutory power to prefects, because although they can make an important contribution to ensuring that other pupils behave and may have the mentoring functions described by the hon. Lady, they act only under the authority of the head teacher or other school staff, helping them to maintain discipline. Moreover, prefects may be under the age of 18 and thus legally children; even if they have reached the age of 18 they are still part of the pupil community and thus under the control or charge of teachers and other professionals employed by the school.
Under the existing common law, prefects are not recognised as being in loco parentis, nor will they be trained or qualified in pupil management. It would therefore be inappropriate to give prefects statutory powers over pupils. However, that does not mean that prefects would have no protection from having their authority overturned. They would be acting within the framework of the school discipline policy, and helping staff to enforce school rules. Thus defiance of reasonable instructions by prefects would be a defiance of the school discipline policy and of the authority of school staff, especially the head, and the governing body. It would accordingly be entirely proper for a school staff member in lawful control or charge of pupils to punish a pupil for such unreasonable defiance.
Amendment No. 396 relates to a similar issue: it specifies that the term “member of staff” should not include pupils at the school. The amendment is not necessary, first, because as I said the clause does not intend the statutory power to impose penalties to be extended to pupils. It is the Government’s view that the clause, as currently worded, relates only to adults employed at the school and would not include prefects or any other pupils. I invite the hon. Member for South Holland and The Deepings to withdraw the amendment.

John Hayes: From what the Minister has said, I am not absolutely clear whether prefects will have certain powers at the discretion of the head teacher. I understood that the Bill talks of prefects using the quite proper powers that the head teacher might want to give them. |Like both the Minister and the hon. Member for Brent, East, I believe that prefects can play an important part in both mentoring and maintaining order in the school. However, I am not sure whether the Minister was implying that prefects would be defined as members of staff. If they were so defined for the purpose of doing the bidding of the head teacher, I wonder whether that would both protect them, in one sense, but perhaps render them liable, in a different sense, to any action or challenge that might take place in law. That was not clear from what the Minister said, but that may be my fault rather than his, so perhaps he can clarify.

Jim Knight: To clarify, as what I tried to say clearly failed to do, prefects are not members of staff and should not be regarded as such. They have no statutory power. What influence or ability they might have to gain respect from pupils would be through the authority that the head teacher had given them and their place within the disciplinary code. The code might say, for example, that to disobey a prefect who has given a reasonable instruction would be a breach of a code and that punishment would follow, but that sanction would be given by the staff and not the prefect.

John Hayes: So, if the prefect has no statutory power, does that mean that he or she has no statutory protection given the kind of challenge that one might anticipate? My anxiety here is that a prefect doing the proper business that the head teacher has asked them to do might be liable to a challenge due to having no statutory protection. We are not absolutely clear about that point on the Conservative Benches, so the Minister may want to intervene again to clarify it.

Jim Knight: I shall try to clarify that prefects have no power to impose a penalty. They cannot enforce their instructions; members of staff enforce. As long as that is made clear to prefects and they do not breach that line they should not be vulnerable to the sort of challenge that concerns the hon. Gentleman, because they would simply be reporting misdemeanour, disrespect or whatever the problem might be to the staff. It is then up to the staff to enforce it and deal with the code.

John Hayes: Yes, I think that the Minister is making the point that the absence of statutory power is the prefect’s defence in law. They could not be challenged legally because they have no legal status, in that sense, except by proxy through their relationship with the head teacher and other teachers in the school. On that basis, as the Minister has clearly researched the matter, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Annette Brooke: I beg to move amendment No. 549, in clause 78, page 61, line 15, after ‘case', insert—
‘(aa) whether the imposition of the penalty will contribute to their well-being,'.

Frank Cook: With this it will be convenient to discuss the following amendments:
No. 550, in clause 78, page 61, line 24, at end insert—
‘(7A) In subsection (6)(aa) “well-being”, in relation to children and young people, is a reference to their well-being having regard to the matters mentioned in section 10(2) of the Children Act 2004 (c. 31).'.
No. 557, in clause 84, page 64, line 37, at end insert—
‘(3A) In subsection (6), after paragraph (b) insert—
“(c) in a case falling within subsections (1), (1A) or (2), is to improve the well-being of the pupil.”.'.
No. 558, in clause 84, page 64, line 37, at end insert—
‘(3B) After subsection (6) insert—
“(6A) In subsection (6)(c) ‘well-being', in relation to children and young people, is a reference to their well-being having regard to the matters mentioned in section 10(2) of the Children Act 2004 (c. 31).”.'.
No. 559, in clause 85, page 65, line 29, after ‘behaviour', insert ‘and well-being'.
No. 560, in clause 85, page 65, line 35, at end insert—
‘(10) In subsection (3)(b) “well-being”, in relation to children and young people, is a reference to their well-being having regard to the matters mentioned in section 10(2) of the Children Act 2004 (c. 31).'.

Annette Brooke: I ought to say at the outset that this is not the Liberal Democrats being soft. In fact, we welcome the main proposals on discipline in this Bill, but some caveats and protection are needed for highly vulnerable members of our society. We have touched on this already, but these amendments are clearly more far-reaching than those put forward by the hon. Member for Mid-Bedfordshire—who will, I hope, be supporting these as the thrust behind them is exactly the same. It simply brings in a wider group of people. We want to insert a new paragraph into clause 78(6), to ensure that a child’s well-being will be taken into account, and to insert similar provisions into clauses 84 and 85.
Why, we might ask, should we think about well-being in considering discipline, when we could probably be thinking some very vicious thoughts about the individuals concerned? The idea stems from the Children Act 2004. The well-being of the child is defined clearly with reference to the five outcomes identified in the Act. I do not think that I need to read those out, because they should be familiar to us all. They are important and they are the backbone of all that we should do in this context.
To determine whether the disciplinary measures will improve the child’s well-being an assessment of their well-being should be made. The focus is on individual children. We do not, of course, suggest that a complete assessment should be carried out for every misdemeanour. However, we want to ensure that vulnerable children will be identified in the school framework and that there will be a teacher with responsibility for looked-after children, for example.
Some of the points that are made in the practitioners’ guide about the common assessment framework are particularly pertinent and suggest what we may need to look out for. For example:
“Children and families may experience a range of needs at different times in their lives...All children require access to high quality universal services. Some children are at risk of poor outcomes”.
That is all very obvious. Those are children with additional needs and they will require targeted support from education, health, social services and other services. Those points were made in the Children Act: a multi-disciplinary and cross-cutting approach is needed. Disruptive, antisocial behaviour, lack of parental support, risk of offending, and poor attendance and other such circumstances may be factors.
Some of the children in the group of those with additional needs will have complex needs. It is at that point that statutory involvement may be needed. That is the point of “Every Child Matters”—that the school should play a part. We are well aware, in the context of child protection, that in the past, before the Children Act was passed, schools did not necessarily play a full part in the identification of children at risk. Children with complex needs may include looked-after children, children at risk,
“care leavers; children for whom adoption is the plan; children with severe and complex special educational needs”—
which we have covered—
“children with complex disabilities or complex health needs; children diagnosed with significant mental health problems; young offenders”.
Particular circumstances in children’s life may be relevant, such as bereavement, or a parent in prison. Many of those are already mentioned in the guidance, which I have praised, but it is by no means exhaustive. More should be added, and I have already mentioned that young carers should be included.
At least in the guidance to be applied when children face disciplinary measures, it should be clear that the thrust and spirit of what we all fought for in the Children Act is being carried through. I am sure that we can all think of examples of inappropriate disciplinary action, such as an ASBO for a child with severe Asperger’s. That cannot be right, but unless we all focus, and everyone plays a full part in the Government’s agenda for “Every Child Matters”—particularly in the sphere that we are now considering—we may easily go down the slippery slope whereby bad behaviour manifests at school and we may later be dealing with a young offender. Many of us, though, faced with the same difficult contributing factors, might not have stayed on a straight course in our lives. What I ask of the Minister is that the work should be carried through from the Children Act and reflected in the Bill.

John Hayes: As we discuss the detail of this aspect of the Bill, it is important to set in context why the Government are doing what they plan to do should the Bill become law. The arguments articulated by liberals and other radicals and progressives over the decades have resulted in the kind of atmosphere in many schools that is not conducive to learning. Of course it is a matter of balance, but it is absolutely right that we should support parents, teachers and children in ensuring that the atmosphere that prevails in our schools and classrooms is an ordered one. To me—and to most people, I think—that is fundamental to good educational practice. As I have said repeatedly, that is what happens in most schools.
Discipline is a symbol of caring to a child. Most of us are parents and know that it is tough for parents, teachers and children. I am strongly in favour of the spirit that underlies this part of the Bill, and therefore worried by these amendments. Amendments Nos. 549 and 550 would limit reasonable punishment to punishment that contributes to a pupil’s well-being—wording employed in section 10(2) of the Children Act 2004. However, the amendments neglect to mention the well-being of other members of the school community, such as other children and staff in the school, including teachers and others. The amendments would weaken the good elements of the Bill in respect of discipline—we would be rowing back in favour of those whose policies have undermined discipline in so many classrooms.
I am inclined to the view articulated by no lesser a personage than the Hollywood actress Bette Davis, whose films we all enjoy. What did she have to say on this subject? She said that discipline is essential, and that:
“If there is love, there is no such thing as being too tough with a child...If you have never been hated by your child, you have never been a parent.”
That is an unfashionable idea, but who among us has not, when we have disciplined our children, had the kind of response that Bette Davis implies in that statement? Not all interfaces between children and parents or teachers are happy. I well remember my idyllic school days during my idyllic childhood being punctuated by occasions on which my parents or teachers were extremely tough in enforcing the sort of discipline that I, like most children, desperately needed. If that is done in an atmosphere of care and concern at school, and love and security at home, it is entirely right that it should be done. I will not support any amendments that would weaken this part of the Bill and therefore urge the Committee, Minister and Conservative Members to resist these well intentioned but muddled amendments.

Jim Knight: For some it may be tempting to make mischief with these Liberal Democrat amendments and, in doing so, tell them that it is for their own good. I listened carefully to the hon. Member for Mid-Dorset and North Poole and I fully respect the intention behind the amendments and the spirit in which they were tabled. I fully respect her commitment to promoting all children’s well-being. That is a major plank of Government policy, as well as a key reason for helping schools to promote good behaviour. However, introducing a statutory requirement for schools to take account of whether the imposition of a penalty on a pupil contributes to his well-being, as the amendments would do, is neither necessary nor even sensible.
Schools have a well established duty of care towards all their pupils. That duty is to take care of pupils in their charge as a careful parent would in like circumstances, which includes a duty to take positive steps to protect their well-being. It prevents them from imposing disciplinary penalties that would, for example, physically or psychologically harm a pupil; humiliating or degrading punishments also fall into that category. More specifically, the clause requires disciplinary penalties to be reasonable—the hon. Lady’s favourite word—in all circumstances. It goes on to specify what reasonable means, taking account of whether the penalty is proportionate to the offence, the pupil’s age and special educational needs or disabilities, and any religious requirements that affect him.
There are solid safeguards for the well-being of the child, but adding to them a requirement that penalties contribute to pupils’ well-being is going too far. The key point is that all disciplinary penalties, from the mildest to permanent exclusion, have to strike a balance between the interests of the individual and those of the school community as a whole. Of course a penalty should signal to the individual that a particular behaviour is unacceptable, and we hope that he will learn from it; but it should also protect the rest of the school community by deterring him from repeating such behaviour and signal to other pupils that the behaviour is unacceptable.
That means it is not always possible to argue that a particular penalty promotes the well-being of the pupil on whom it is imposed. The amendment would introduce into mind of the member of staff carrying out discipline and enforcing an action uncertainty about whether they were contributing to well-being, and therefore whether they were acting illegally. It is not sensible to add the proposed requirement, and I hope that on that basis, the hon. Lady will withdraw the amendment.

Annette Brooke: I think I thank the Minister for his comments. He tried hard to be kind.
The amendments deal with an important point. They are not about condoning disruptive behaviour and allowing it to continue at the cost of others in the school. The serious point is that we can get the balance wrong, and we have done so in certain well publicised circumstances. I make no apology for making what was always going to be a tough argument. Somebody should make that argument, because we do not always get the balance right.
I would be happy if within the provision, which I regard as a good starting point, there was a wider reference to the type of vulnerable children to whom I have referred making it clear that some children require a different approach from others. All sorts of measures that might be more appropriate: a pupil referral unit in the school might be employed, or one-to-one support might be needed. Any disciplinary policy that takes on board the individual characteristics of young people must include flexibility. That should not undermine the commitment of us all to strong discipline in a school and orderly situations in the classroom. The learning environment is one core aspect of truly improving the future of all our children.
I thank the Minister for his comments. I make no apology for proposing it, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 78, as amended, ordered to stand part of the Bill.

Clause 79

Enforcement of disciplinary penalties: detention outside normal hours

John Hayes: I beg to move amendment No. 264, in clause 79, page 62, line 17, at end insert
‘unless the head teacher has previously made known within the school and to parents of registered pupils at the school that the detention of pupils outside normal school hours without notice is one of the measures that may be taken with a view to regulating the conduct of pupils.'.
The amendment would prevent spurious travel concerns being used as a reason for avoiding detention. Detention is widely used and is effective but, unfortunately, teachers are often reticent about using it because pupils or unco-operative parents claim that it would disrupt travel arrangements. In some cases, such objections are reasonable—for example, the child may live a long way from school and have to catch the school bus.
It is entirely appropriate that proper notice should be given of detention, and that schools should make clear that detention may be used as one means of regulating the conduct of pupils. The Leader of the Opposition, who is in the ascendancy, said recently:
“Pupils can only learn in classrooms where good order and discipline are maintained.”
Pupils look to school for order and stability. Just as the Government have moved to a more Conservative view of discipline, so do I, in that co-operative and consensual way, move the amendment, so that the Bill can be better still.

Sarah Teather: I am little confused about what the hon. Gentleman intends by the amendment. I understand that it would remove the requirement to give 24 hours notice, but at the end of his speech he seemed to accept that notice is required. I may have misunderstood the amendment—or perhaps the hon. Gentleman did not speak to it.
For the record, we would not be in favour of removing the period of notice. It would be totally impractical. In rural areas, especially on dark evenings, parents would not know what had happened to their child and would be extremely concerned. It is perfectly acceptable to give 24 hours’ notice, as it will allow parents to make other arrangements for travel or to arrange for a neighbour or other family member to stay at home to provide cover. Anything else would be unacceptable.

Jim Knight: I agree with the hon. Member for Brent, East in her interpretation of the amendment. For reasons of child protection, it is important to regulate detention. One of the most important conditions that governs detentions out of school hours—it was introduced in legislation that came into force in 1998—is the requirement to give parents 24 hours’ notice that detention is to take place. It is crucial that parents are made aware that a child is being kept back after school and will not be home at the expected time.
The amendment would remove that blanket obligation and allow schools to detain pupils after the end of the school day without informing the parents. That could cause all sorts of problems. For example, it may be difficult for the child to travel home after detention—that would certainly be the case in parts of Dorset—the absence may leave a younger sibling unsupervised at home, and, as the evening draws in, parents will become worried.
Furthermore, because the Bill extends the permitted days of detention to some weekends and staff training days, the amendment would allow a school to compel a child to attend detention on such a day without notifying the parents. That would create entirely unnecessary anxiety for the parents and deny them the opportunity to draw to the school’s attention factors such as family holidays or religious festivals that might make the detention unreasonable.

John Hayes: Before the hon. Gentleman rose to the rank of prefect, was he ever in detention?

Jim Knight: I certainly was in detention at school—twice, I believe. On both occasions, I had to take a slip home to inform my parents, but that was well over 20 years ago. The 1998 provisions requiring 24 hours’ notice have come in since I left school.

John Hayes: We are all most interested in the Minister’s school career. I just want to tease out the details: is he suggesting that, in those days, slips were taken home? I remember being put in detention many times at school, and it was not common practice for parents to be informed in advance. What about detentions in breaks, lunchtimes and other times? Are not his proposals far less practical than the very sensible ones in the amendment?

Jim Knight: I shall deal with lunchtimes in a second, but I remember my very first detention, which was for not bringing a towel to school on the day that we were swimming—[Hon. Members: “Disgrace!”] I was seven or eight, and it was important to inform my mother that I had detention, because I did not have any way of getting home after the obviously much-deserved detention for the absent towel. I do not hold it against Mr. Lloyd. [Laughter.]
On the point about lunchtimes, I recognise that written notice to parents is not appropriate for all detentions. Such notice has never been required for detention during ordinary school hours except for lunchtimes. The Bill abolishes the requirement for notification of lunch-time detentions, given that lunchtimes are part of normal school hours, and that it is simply not practicable or necessary for schools to notify parents every time that a pupil is kept back for, say, five minutes at the beginning of lunch time. Schools may still choose to notify parents of a lunch-time detention if, for example, the pupil was expected home for lunch and the detention would disrupt such arrangements or cause anxiety, but that is more appropriately covered in guidance than in primary legislation.

John Hayes: I do not intend to interrogate the Minister further about his colourful past in respect of swimming or anything else, but if a parent was unco-operative about a pupil’s detention, what sanction would a school have? Would the Minister think it useful to build into home-school contracts the provisions that we put in our amendment, so that parents understand when their child starts at the school that detention is one of the sanctions available to the school to use, with the kind of notice that the Minister described?

Jim Knight: We shall discuss home-school contracts under a later amendment, but I would certainly expect the school’s disciplinary policy and code to be made clear to parents through something like a home-school contract. The sanctions that would accompany breaches of the rules, including detention, should be made clear in such a policy. I believe that parents would be told what was going on. If parents do not want to co-operate with the school, we would have to discuss measures such as parenting contracts or parenting orders, which are at the far end of the spectrum of measures to deal with a breakdown in the relationship between the school and the parent. For reasons of child protection and fairness to parents, I hope that the hon. Gentleman will withdraw his amendment.

John Hayes: I did say when I moved the amendment that there were cases in which, because of issues with, say, school transport—someone mentioned rural areas—these things were difficult. Although I remain concerned about unco-operative parents undermining the policy of the school, there may be other, more appropriate ways of dealing with that, and on that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 79 ordered to stand part of the Bill.

Clause 80

Power of members of staff to use force

Annette Brooke: I beg to move amendment No. 74, in clause 80, page 63, line 13, at end insert
‘and—
(c) the member of staff has received appropriate training and accreditation in the use of force.'.

Frank Cook: With this it will be convenient to discuss the following amendments: No. 572, in clause 80, page 63, line 13, at end insert
‘and
‘(c) members of staff have received accredited training in the use of physical restraint on children and young people.'.
No. 75, in clause 82, page 63, line 41, at end insert—
‘“force” means restrictive physical intervention that is proportionate to the relevant circumstance as set out in section 80(1);'.

Annette Brooke: I should say at the outset that the amendments are probing, because I can see things that are wrong with the wording.
From a teacher’s point of view there is some help and clarification in clause 80, but the some guidance to accompany the clause is needed. I well remember my husband relating the story of how, one lunch time when he was in charge of a school block, he was the only member of staff present when two teenage girls were fighting—to the death, it seemed. He was faced with a dilemma: what on earth was he to do? He tells me that his sheer force of personality solved the problem, but not all situations can be solved in that way, and there are some cases in which teachers have to intervene physically. It is a difficult issue, and the probing amendments are designed to ask what type of training and accreditation in the use of force could be appropriate.
I stress that the amendments are probing, because of course one does not really know which member of staff will come into contact with particular situations and face the need to act within the terms of the clause. However, it is essential that there be guidance about continuous professional development in relation to the new power. I notice that the hon. Member for Mid-Bedfordshire has tabled a similar amendment. I do not doubt the need for clarification. Members of my family have been in difficult situations that are relevant to the amendment, so I know that the problem needs to be addressed. Again, it is a matter of balance.

John Hayes: The amendment would again have the effect of diluting the Bill’s impact. In my judgment it is not right to weaken the position of schools and teachers in respect of the use of appropriate force.
If a mad person were to enter the Committee Room at this moment and were to approach Liberal Democrat Members with ill intent, I would be able to use reasonable force to restrain that person, if I chose to do so. I would do it without having had any training or accreditation in the use of force, and I imagine that, provided that I used only reasonable force to defend the hon. Ladies, I would be within my legal powers and would have nothing to fear from the police or the courts.
Mr. Edward Leigh (Gainsborough) (Con) indicated assent.

John Hayes: My hon. Friend, who is a great expert in such matters, is confirming that.

Edward Leigh: But you would not be allowed to shoot them.

John Hayes: I shall not rise to that bait, Mr. Cook. I mentioned earlier that there are many instances of violence in schools these days, but the amendment would mean that no teacher could use reasonable force to deal with a disruptive pupil or a potentially violent pupil unless they had received training or accreditation. At the least, that would delay the Bill’s impact for a considerable time, because every teacher would have to undergo training and receive accreditation, and that would be a mammoth task. I trust teachers’ judgment. I think that they will exercise reasonable judgment and use reasonable force according to the circumstances that they face.

Annette Brooke: I fear that the hon. Gentleman was not listening carefully to me. I explained that I felt the wording of the amendment was imperfect and that it did not cater for situations in which someone might have to act immediately. Nevertheless, there needs to be continuous professional development. Given that a new power is in the Bill, the extra training requirement must be made clear.

John Hayes: I am sorry, but every time the hon. Lady talks about balance, she seems to use it as a euphemism for weakening this part of the Bill. Of course training should be made available, but putting such a requirement in the Bill would be unhelpful. Teachers engaged in in-service training should, wherever possible, be encouraged to take on the necessary additional skills to deal with difficult situations, unruly pupils and extreme incidents such as those involving violence. However, it would not be appropriate to put such a requirement in the Bill.
I was successful in urging the Minister and other members of the Committee to resist a previous Liberal Democrat amendment, and I hope to persuade them to resist this one.

Jim Knight: The amendments all deal with the use of force in schools. Taking amendments Nos. 74 and 572 first, the clause enables school staff to use reasonable force in specified circumstances. That is not new; school staff have had a statutory power to use reasonable force since 1998 and two sets of guidance govern its use. The clause re-enacts current legislation. I am not aware that that essential legislation has caused problems in the past eight years, so I do not believe that it is broke or that it needs fixing.
Physical intervention should be regarded as a last resort, but situations in which it is necessary can arise in any school. As we have discussed, such intervention sometimes has to be immediate, so it is not practical to rely entirely on a small cadre of expert staff: every member of staff whose job includes supervising pupils must have the power to intervene physically when necessary. That makes the amendments undesirable. It is disproportionate and impractical to require every school to give every member of staff who has any responsibility for supervising pupils specialised training in physical intervention.
However, there are some schools and units—for example, special schools for children with behavioural difficulties—where situations requiring physical intervention may be more frequent and more serious and where there might be a need to be more sensitive to the needs of the individual children. In such settings, all relevant staff, I am sure, may need specialist training, but that represents a different circumstance from a reception class, for example.

John Hayes: The Minister makes a good point about the demands on teachers who deal with children with emotional and behavioural difficulties. When he says “I am sure”, does he mean that he will amend the Bill to allow for that, or that he will include it in guidance; or is he merely expressing a fond hope?

Jim Knight: There is non-statutory guidance on the use of force and, as I said, we are re-enacting the 1998 legislation, so such a provision would not be in the Bill. We will update the guidance, bearing in mind our earlier debate and the comments that are being made now. We will consult on that guidance following the passage of the Bill.
I hope that the Committee accepts that we should not have a one-size-fits-all regime and that the amendment will be withdrawn.

Annette Brooke: I shall be happy to withdraw the amendment. I said at the outset that the matter needed to be highlighted in guidance. I am pleased that guidance will be issued and that there will be consultation on it, because it is difficult to anticipate all the issues that might arise. I am pleased in principle to see the provision in the Bill, even if it is a re-enactment of previous legislation, because it will give teachers some comfort. There is uncertainty about what is allowed.
I also welcome the Minister’s specific comment on teachers who are faced with the greatest challenges resulting from the behavioural problems affecting children in some of the special needs schools. They have a difficult task and need to feel supported, not challenged, by the legislation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 80 ordered to stand part of the Bill.

Clause 81

Defence where confiscation lawful

Sarah Teather: I beg to move amendment No. 553, in clause 81, page 63, line 27, leave out
‘, retains or disposes of'
and insert ‘or retains'.

Frank Cook: With this it will be convenient to discuss the following amendments: No. 554, in clause 81, page 63, line 29, leave out ‘, retention or disposal' and insert ‘or retention'.
No. 552, in clause 81, page 63, line 31, leave out ‘he proves that'.
No. 555, in clause 81, page 63, line 31, leave out ‘, retention or disposal' and insert ‘or retention'.
No. 556, in clause 81, page 63, line 32, at end insert—
‘(2A) A person who disposes of the item is not liable in any proceedings in respect of the disposal if the item could not reasonably be restored to its lawful owner, or if a pupil, to that pupil's parent or guardian, without thereby facilitating the commission of an offence or of creating the possibility that further disciplinary action might need to be taken in relation to the pupil.'.

Sarah Teather: The amendments seek to clarify the provisions on the confiscation of a pupil’s property and to separate the disposal of that property from its seizure and retention, which is what we normally understand as confiscation.
We would expect a teacher to return the majority of items that are confiscated during the school day to the student or their parent or guardian, as appropriate. However, there are occasions when that is not suitable, perhaps because the item is dangerous or the young person was using it to be disruptive. In such cases, the item is most likely to be a weapon, such as a knife. We are simply trying to make it clear that members of staff who do not return such items to the student, parent or guardian have a legal defence.
Amendment No. 556 would make it clear that the grounds for disposing of an item included preventing the owner from using it to commit an offence or to provoke further disciplinary action by repeating the behaviour that led to the confiscation. We are trying to make it clear for staff and students that those are the only grounds on which property could be kept or disposed of, rather than given back to the student.

John Hayes: The hon. Lady has done the Committee a service in probing this issue. As she said, it is important that we draw a distinction as to the kinds of item that might be confiscated. Mobile phones are one such item and they are becoming a significant problem in schools. The Newcastle secretary of the National Union of Teachers, Ian Grayson, says:
“Virtually every child has a mobile phone now. They are not supposed to be switched on during lessons but they do get used for text and communication, which is a distraction for children when they are there to learn.”
It is absolutely right that teachers should, as a matter of course, confiscate mobile phones while children are on the school premises. Many parents give their children mobile phones because they are worried about their security, but it is right that teachers should confiscate them, and we welcome the new powers in the Bill to allow staff to do so.
The hon. Lady is right that other items, particularly weapons or items that could be used as weapons, might be confiscated permanently. It is entirely inappropriate for teachers to be in the business of giving knives or other items back to children. For those reasons, the amendment is interesting. I wait to hear what the Minister says, because the Government might want to address the matter, at least in guidance.

Jim Knight: On the face of it, amendment No. 552 seems reasonable. Having to prove that a confiscation was lawful seems to reverse the “innocent until proven guilty” principle, but that is not, in fact, what the clause is about. Clause 81 does not make somebody guilty. Quite the opposite: it makes him innocent if he can show that his actions were lawful. That is why the clause is entitled
“Defence where confiscation lawful”.
The clause gives a member of staff a defence if he shows that his actions—the seizure, retention or disposal of an item—were lawful. That includes actions that are lawful under clause 78 and which constitute a lawful disciplinary penalty. The clause therefore strengthens the position of school staff.
The seizure, retention or disposal of somebody’s property interferes with his rights under article 1 of the protocol to the European convention on human rights, which guarantees that a person is entitled to the peaceful enjoyment of his possessions. That means that the person who has seized, retained or disposed ofthe property must prove that that interference was proportionate, necessary in a democratic society and in pursuance of a legitimate aim. Removing the reference to proof from clause 81 would not change that fundamental principle: state schools are public authorities and must prove justification. All it would do is make the legal position less manifest and clear. That is the technical answer about the effect of the amendment.
The hon. Member for Brent, East mentioned knives. The issue of knives in schools was substantially dealt with in the Violent Crime Reduction Bill, which, as hon. Members may recall, will give staff the power to search for offensive weapons, with only the police having a general power to search.
Mobile phones were mentioned by the hon. Member for South Holland and The Deepings. I agree that they are a significant problem and, like iPods to some extent, they are not a straightforward problem for some schools to deal with because of their significant value. In respect of legal cases that might come under human rights legislation in respect of the enjoyment of property, to confiscate and dispose of something of such value as a mobile phone or an iPod would potentially be quite difficult. It is appropriate that such items would be returned at the end of the day, as the hon. Member for Brent, East has said. I hope that that is sufficient to encourage her to withdraw the amendment.

Sarah Teather: I thank the Minister for his reply. Although I accept that the provision is in accordance with section 1 of the Human Rights Act 1998, I am not entirely clear whether it is compliant with sections 6 and 7. However, I suspect he has a much greater legal team than we do to check such matters out.

Jim Knight: I am happy to write to the hon. Lady and members of the Committee in respect of those two sections of the 1998 Act and reassure them on that point.

Sarah Teather: I thank the Minister for that answer, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 81 ordered to stand part of the Bill.

Clauses 82 and 83 ordered to stand part of the Bill.

Clause 84

Parenting Contracts

Question proposed, That the clause stand part of the Bill.

Nick Gibb: I rise to express the support of the Conservative party for the disciplinary powers in the Bill, subject to some important concerns about children with special educational needs, which we will discuss in respect of the next group of amendments.
The clause relates to parenting contracts and allows a local education authority or governing body to apply earlier for a parenting contract. At present, parenting contracts are available only once a child has been excluded. The proposal is an outcome of the recommendations of the practitioners group on school behaviour and discipline. The group felt that parenting contracts were an effective way of giving support to parents for whom home school agreements would not be sufficient. It said:
“We are concerned that this requirement for an exclusion to have first taken place inhibits the use of the parenting contract as part of an early intervention strategy.”
Its recommendation 3.72 stated that
“schools should be able to offer parenting contracts, prior to a pupil being excluded, as part of an early intervention strategy for tackling poor behaviour at school.”
We fully support clause 84, and I wanted to put that support on the record.

Annette Brooke: I have frequently confessed that I was wrong about parenting contracts when we first discussed them in respect of the Anti-social Behaviour Act 2003. At that stage, I wondered how we would make somebody do something if they did not want to play. The evidence is there for us to see. There have been some great successes and I think that this is the second time that I have stood up and said that my fears did not come to fruition. The contracts have to be applied with care but they are an important tool and show that early intervention can have an effect. Ideally, of course, we would like to get the parenting classes in much earlier, but given the situation they are a tool that can have a positive impact if used in the right way. When parents say that they wish they had undertaken the course earlier, that shows that it can work.

Jim Knight: I rise for an instant to thank both hon. Members who have spoken in this extremely brief debate for their new-found support and the gracious way in which they have given it.

Question put and agreed to.

Clause 84 ordered to stand part of the Bill.

Clause 85

Parenting orders in case of exclusion or misbehaviour

Nadine Dorries: I beg to move amendment No. 575, in clause 85, page 65, line 15, at end insert
‘and
‘(c) the relevant body has taken full account of—
(i) any special educational needs the child may have, and
(ii) any disability the child may have.'.

Frank Cook: With this it will be convenient to discuss the following amendments: No. 576, in clause 88, page 68, line 3, at end insert—
‘(3C) A local authority must make an assessment in accordance with section 323 of EA 1996 (assessment of educational needs) of any pupil permanently excluded.'.
No. 577, in clause 90, page 69, line 14, at end insert—
‘(6A) Parents of excluded children who are subject to a statement of special educational needs are exempt from this section, unless it has been demonstrated by the local authority that the parents have contributed to the child's exclusion.'.
No. 578, in clause 95, page 73, line 14, after ‘exclusion' insert—
‘(ca) the local education authority ensure that the provision provided meets the requirements to provide the child with, an appropriate education that his age, ability, special educational needs and disability calls for,'.

Nadine Dorries: The amendment is similar to amendment No. 574 and raises similar concerns. If we are to support inclusion and ensure that children with SEN become part of the larger school community and are totally included, and if we are to support parents who want their SEN children to be part of mainstream education, we must give them due consideration and cover them specifically in the Bill.
The Minister mentioned earlier that an excluded child does not have to be excluded to their home, just to a safe place. I am sure that he is aware that many disabled or SEN children live in adapted surroundings with specialist equipment. A child in my constituency with cystic fibrosis attends a classroom and school that have been adapted, with ramps leading into the dining room and toilets. Her home has an oxygen supply, ramps, the specialist feeding and learning equipment that she needs and bolsters to support her.
The Minister said that a child need only be excluded to a safe place. I think that a lawyer would argue, with reference to article 8 of the European convention on human rights, that it is unreasonable for the Government to expect a parent to find an alternative safe place for their child to be excluded to, given the amount of detailed planning and work that goes towards making that child’s environment safe. A lawyer could also effectively argue that the Government have been made aware of the unreasonable nature of that provision by the debate in the Committee. Will the Minister re-examine article 8 of the convention and consider whether it is reasonable for disabled children to be excluded at very short notice to an alternative safe place?
Amendment No. 576 would require local authorities to undertake an assessment in accordance with the Education Act 1996 of any pupil who is permanently excluded. Although one third of children excluded from schools are able, according to the Government’s statistics, the remaining two thirds have special educational needs. I refer to the Government’s response to the written question tabled by the hon. Member for Blackpool, South (Mr. Marsden) on26 March 2006, which illustrated that point. Perhaps we should consider the possibility that, by reducing statementing support for vulnerable pupils and increasing placement in mainstream schools without offering relevant training, support or resources to our hard-pressed teachers, we have increased exclusion rather than, as desired, increased inclusion.

John Hayes: My hon. Friend is making a compelling case, and I shall support it by pointing out that the fastest growth area in statementing is children with emotional and behavioural difficulties. Many statemented children who are excluded are EBD children. I suspect that, as my hon. Friend has suggested, had they been educated in special schools they would have progressed further and their exclusions might have been avoided.

Nadine Dorries: I agree with my hon. Friend. Many children who are excluded from mainstream schools would not have been excluded from a special school. I have spoken to Labour Members who know of similar cases to those that I have mentioned. I have spoken in the Chamber on a number of occasions about the little boy named Jack who was the first person to walk into my first surgery after I became an MP. Within five minutes of arriving in my room, he had completely wrecked it: he had taken every book off the bookcase; he had turned the chairs upside down; he was buzzing the light switches; and his mother was distressed and could not speak. He took everything off my desk.
Jack had been excluded from mainstream school, which was where the local education authority had said that he should be placed. However, because of his particular problems, his mother had excluded him—he drove the children in that school mad. His behaviour in the classroom stopped them learning and playing. They were pulling the chair out when he sat down, if effect almost harming him, so his mother withdrew him from the mainstream school environment, which meant that Jack, who needed education more than most because of his particular problems, was excluded from school. That illustrates things perfectly. There are not just children excluded by the local authorities, but those excluded by families and parents for their own protection.
Before we put legal steps in place through parenting orders and voluntary contracts, and before we condemn a pupil to a referral unit, we explore whether a hidden disability or learning need—for example, Asperger’s, a language impairment or severe specific learning difficulties—is present. Often, such children of average ability hide their disability from teachers, but it emerges in poor behaviour and wilful refusal to conform.
Let us not forget that 80 per cent. of young people in young offenders’ institutions have special educational needs. Most did not benefit from a statement, according to the Youth Justice Board. The number of adult prisoners who are illiterate is a national scandal. I am not saying that that is a problem of this Government’s making—it was ever thus that such a number of prisoners were illiterate—but those prisoners are at greatest risk of becoming involved in further crime. And who is at greatest risk of becoming involved in crime in our schools today? Those children who are excluded. They are perhaps being excluded because of underlying problems.
If we wish to re-include in society those of our children and young people who have been excluded, we must ensure that they are given the appropriate support to receive an appropriate education. When a child is permanently excluded is surely the time for us to look at that child and say, “Why is this child permanently excluded? Are there underlying problems that we do not know about? Maybe we should take a statutory assessment, just to see whether there are any particular problems that could be addressed.”
For too many disadvantaged young people, such help is often available only through the statement of special educational needs, but that should be informed by multi-agency professionals. When a child presents such behaviour—wilful refusal to conform or to obey the teacher, or do what the classroom requires—speech therapists or educational child psychologists might not be the only people who can identify the problem. A number of professionals might need to come together and work across agencies to be able to diagnose and decide what help that child needs.
Therefore, I urge that the amendment be adopted to stop the increasing numbers of our young people ending up in the criminal justice system or a pupil referral unit. They are often denied the opportunity of access to a good school, where they belong with statemented support. I am not saying that those permanently excluded children should go to a special school, which is often argued. I am saying that those permanently excluded children could be diagnosed, the appropriate support could be put in place and they could go back into mainstream school. They could become part of that school community, which is where they belong.
Amendment No. 577, which is an amendment of sorts to Amendment No. 576, is about the parents of excluded children who are subject to a statement of special educational needs having an exemption
“unless...the parents have contributed to that child’s exclusion”.
The responsibility to provide an appropriate education to a child with a statement of special educational needs rests with the local authority. Too often I have heard of cases—not just in my own constituency, but nationally—regarding children excluded from school whereby, despite interim reviews and annual reports, the authority has either been slow to act or failed to do so, which has led to the child’s exclusion. We know some of the reasons—there may be cash limitations or the local authority might have overzealously interpreted what inclusion means.
A variety of reasons might be involved, but that happens frequently. As such, is it fair or just to penalise the parent of a statemented child who has been excluded from school because of the inaction of the local authority, implying that all exclusions are a result of poor parenting?
We have probably all witnessed degrees of bad parenting, but we should also consider the fact that the majority of parents of excluded special needs children are doing their best to meet their children’s needs, often in very difficult circumstances. Rather than introducing penalties that could effectively punish responsible as well as irresponsible parents, we must amend the legislation. Otherwise, we will tar every parent of an excluded child with the same brush, instead of looking at individual circumstances and needs, and making reasonable adjustments.
Amendment No. 578 is a general amendment. I believe that any requirement for a child to attend a specific school must include a duty on the education authority to ensure that it is appropriate to meet the child’s individual learning needs.

Nick Gibb: It is a pleasure to follow my hon. Friend, who makes a compelling case for such exemptions and special provisions. Clause 85 relates to parenting orders, which are imposed by the magistrates court following a successful application by the local authority and are intended for parents unwilling to comply with voluntary measures. They can force parents to attend a parenting course, which may be residential. Breach of such an order is liable to a fine of £1,000.
Clause 85 will extend parenting orders so that they may be applied for before exclusion. That will account for schools that can manage behaviour without having to resort to exclusion. The clause will also allow schools, as well as local authorities, to apply for orders. That was recommended by the Steer group, which is why we support the clause fully.
Recommendation 3.73 said that
“the legal power to apply for a parenting order should be extended to schools accompanied by clear guidance and examples of good practice in applying parenting orders effectively.”
Recommendation 3.74 said that
“it should be possible to apply for a parenting order, following serious misbehaviour at school, in cases where the pupil has not been excluded.”
However, we have some concerns about the costs involved.
According to paragraph 1.51 of the guidance,
“the applicant for a parenting order is responsible for all costs associated with it including the cost of the parenting programme”.
That means that if a school wishes to seek an order forcing a parent to attend a parenting course, the cost will fall on the school. Has the Minister considered whether that will be a disincentive for a school to apply for such an order or is he confident that there will be sufficient resources to overcome that problem?
I am also reflecting on the comments made by my hon. Friend the Member for Mid-Bedfordshire. We need to consider the impact of the provisions on the parents of children with special educational needs. They feel very aggrieved. Because of the inclusion agenda, their child might well be attending what they regard as an inappropriate school. As a consequence, the child’s behaviour might have deteriorated, or the child might be regarded as somebody who simply does not fit in.
The Minister might correct me if I am wrong, but I understand that the Steer committee was asked not to consider problems related to special educational needs when it discussed disciplinary issues in our schools. My hon. Friend made important points about the proportion of excluded children with special educational needs. We are therefore inclined to support one of her amendments regarding a local authority’s requirement to assess the special educational needs of any child who is permanently excluded, so that we can be sure that future educational provision for that child is appropriate and sufficient for their needs. That is a compassionate way to help such children to deal with their problems by ensuring that they attend appropriate schools tailored to their special needs.

Jim Knight: As we have heard, the amendments deal with the important issue of addressing properly any special educational needs or disabilities that a pupil might have. I acknowledge that children with special educational needs are almost four times as likely to be excluded than the rest of the school population. That has improved during the last few years. I believe that some nine or 10 years ago, the rate was twice that.

John Hayes: I am sorry to interrupt the Minister so early in his response, but perhaps, either now or in a letter, he will let the Committee know how that breaks down in terms of mainstream and special schools, and by type of special need. We need to know how many of those children have emotional and behavioural difficulties, and how many are attending special schools for the reasons that my hon. Friend the Member for Mid-Bedfordshire mentioned.

Jim Knight: If I can reasonably and efficiently expedite that for the Committee, I shall be delighted to do so, but as I stand here I do not know how straightforward it is to get that information together.
We could have an interesting debate on inclusion, but it would not be about parenting orders and it might get us into some difficulty. Our policy is set out in the Education Act 1996, which provides for children to be taught in mainstream schools where that is consistent with the wishes of their parents, meets the child’s needs and is not incompatible with the efficient education of other children.
The hon. Member for Bognor Regis and Littlehampton wanted to know whether the Steer review was asked to consider special educational needs pupils. The report said that further, more detailed work was needed to consider issues involving special educational needs pupils, which reflects the real difficulties and complications that the hon. Member for Mid-Bedfordshire described so well.
Amendment No. 575 is simply unnecessary, as safeguards are already in place to ensure that pupils with disability or special educational needs are properly dealt with. Illustrative guidance sets out what will be expected of schools and local authorities when considering an application for a parenting order. If the hon. Lady wants to write to me with her thoughts on that guidance and how it can be improved, I shall read her letter with close interest.
In addition, the court may make a parenting order—this is crucial—only if it is satisfied that it is desirable in the interests of improving the behaviour of the pupil. In the case of a child’s behaviour that is a result of special educational needs or disability over which the parent has no control—or even, as the hon. Lady described, where the child has a profound physical disability, and there might be problems associated with their being kept at home or in the terms of the order—the court would have to bear that in mind when making its decision and consider carefully whether a parenting order would lead to improvements in the child’s behaviour. That is the test that it would need to apply.
There appears to be an assumption behind amendment No. 576 that the special educational needs of some children who are permanently excluded from school have not yet been identified. However, the 1996 Act, to which I referred earlier, and the special educational needs code of practice already provide a framework for schools and local authorities to identify, assess and make suitable provision for children with special educational needs. The code provides statutory guidance to schools and local authorities in meeting their special educational needs duties and recommends a graduated approach to meeting children’s special educational needs.
The statutory guidance on exclusion, to which schools and local authorities must have regard, states that school governing bodies must ensure that appropriate provision is made for any pupil with special educational needs. In cases where a pupil’s special educational needs are giving rise to disruptive behaviour, schools should already be taking action to address those needs.
Our guidance is that schools should try every practical means to maintain the pupil in school, seeking local authority and other professional advice. However, that does not mean that such pupils can never be excluded. The local authority might need to consider whether children with special educational needs, but without statements, require a statutory assessment following a permanent exclusion and whether permanently excluded children who have not been identified as having special educational needs might indeed have special educational needs. However, the amendment would mean local authorities having to carry out many unnecessary assessments with all the bureaucracy that that involves, as well as the cost, which in 2002 was estimated by the Audit Commission to be £2,500 per pupil.
On amendment No. 577, a key driver behind the new duty in clause 90 is our wish to ensure that the child is supervised and not free to wander the streets, causing trouble for themselves as well as others. Children with a statement of special educational needs are as much in need of such supervision and protection as any other—perhaps more so. It is also important that no child should consider exclusion a reward, in the form of “extra holidays”. All children should continue their education.
Clause 90 achieves that with a mixture of parentally-arranged supervision, homework set by the school and local authority-arranged provision; exempting special educational needs children from the clause would undermine it. No one would dispute that there should be safeguards for children with special educational needs, but those are already in place, as I have outlined, and the indicative guidance highlights how we should proceed.
We recognise that there might be circumstances in which a child or his parents have to be in a public place, such as a long-arranged medical or other appointment or a medical emergency. Such explanations are covered by the defence of reasonable justification and no children will be prevented from accessing the services that they need.
Amendment No. 578 is also unnecessary. It would place a duty on local authorities to provide a suitable education for excluded pupils. The Government agree that that is necessary. However, section 19 of the 1996 Act already requires local authorities to make arrangements for children who are not in school or are being educated otherwise to receive a suitable education. That section specifically includes excluded children. It also defines a suitable education as appropriate to the child’s age, ability, aptitude and any special educational need that he might have. In fact, that very requirement is the subject of re-enactment by clause 88(3). On the basis that the local authorities already have the duty to provide the appropriate education sought by the amendment, I ask for it to be withdrawn and for the other amendments not to be pressed.

Nadine Dorries: I thank the Minister for his offer to write and to refer to the guidance. I am sure that I shall have the help of the many organisations with which I have been working in the past few months, and I shall take him up on that very kind offer. I am reassured by his reply on other issues, but I am not sure that he is right about the court order and the child being moved to a safe place. However, we shall see what happens in future legislation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 85 ordered to stand part of the Bill.
Further consideration adjourned.—[Mr. Cawsey.]

Adjourned accordingly at three minutes past Eight o’clock till Thursday 11 May at Nine o’clock.